Clarification request to fight APCOA PCN (BHX)

splinternet

Sorry Keith and Redx - have just been abroad on business for a week. Here is my proposed appeal. It's based on previous successful appeals; I've added two of my own (#13 and 14).

Incidentally, I'm selecting the following options on the POPLA appeal site, are these correct or are there more appropriate answers...?

"Why are you appealing...." - I've selected the option "Other grounds for appeal" followed by "Other".

"Please explain your reasons for appealing against the parking ticket" "I have documented fourteen reasons why I believe this PCN is invalid and should be cancelled"

"Attach file"

"Type of document" I have selected "Other"

"What is the file" "A .pdf documenting why I believe the PCN should be cancelled"

"How does it support your appeal?" "By detailing fourteen (14) reasons why the PCN should be cancelled"

Here is what I have documented:

APCOA Parking PCN no. XXXXXXXXX
POPLA Verification no. XXXXXXXXX

A PCN / Notice to Keeper was issued on xx June 2019 for an alleged contravention which took place on xx May 2019. I received the PCN, as the registered keeper of XXXXXX, on xx June 2019. The PCN was for an alleged contravention of “BREACH OF THE TERMS AND CONDITIONS OF USE of the car park”, more specifically “dropping off or picking up outside designated areas at The Central Terminal Area”.

I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) APCOA not using POFA 2012. From their rejection of my initial appeal, it appears that APCOA are attempting to claim the charge is liable to them under airport bye-laws. I reject this and put them strictly to proof on which bye-law they claim is broken, and in any case, why this would result in an obligation to pay APCOA.

2) Airport Act 1986. Airport bye-laws do not apply to any road to which the public have access, as they are subject to road traffic enactments:

Airport Act 1986
65 Control of road traffic at designated airports
(1) Subject to the provisions of this section, the road traffic enactments shall apply in relation to roads which are within a designated airport but to which the public does not have access as they apply in relation to roads to which the public has access.

Both the Airport Act and Airport bye-laws say that bye-laws only apply to roads to which road traffic enactments do not apply

3) Amount demanded is a penalty. Also, it is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was positioned such that the motorist has not time to read it and consider it safely from a moving vehicle, and so has two options: (1) the motorist stops the car in the road just before the sign, therefore blocking and interrupting the flow of traffic, or (2) the motorist stops the car in the lay-by and walks back to read it. Neither case is satisfactory as a charge would be applied instantly the vehicle stopped.

4) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012. If APCOA want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and APCOA have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, the Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that APCOA have complied with these BPA Code requirements for the PCN issued so require them to evidence their compliance to POPLA.

The BPA code of practice also says 20.14 “when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.“' The PCN does not provide this information; this does not comply with the BPA code point 20.14.

5) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150) Airport land is not 'relevant land' as it is covered by statutory bye-laws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I put the Operator to strict proof so if they disagree with this point it would require them to show evidence including documentary proof from the Airport Authority that this land is not covered by bye-laws. POPLA assessor Steve Macallan 6062356150 September 2016 found that all land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012. As the site is not located on ‘relevant land’ the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer/keeper. Airport bye-laws do not apply to any road to which the public have access, as they are subject to road traffic enactments.

6) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103). In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant, and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions that a parking charge cannot be enforced against a keeper without a valid Notice to Keeper. As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party. The burden of proof rests with the Operator, because they cannot use the POFA in this case to show that I have not complied with terms in place on the land and show that I am personally liable for their parking charge.

The circumstance of full compliance with POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, a previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability - “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. ] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."

So no lawful right exists to pursue unpaid parking charges from me as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
"I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 5 above.

7) Misleading and unclear signage and not seen so no contract entered into or formed. The alleged contravention according to APCOA is in" breach of the terms and conditions of use of the car park. Signs are clearly displayed…" It would appear that signs at this location do not comply with road traffic regulations or their permitted variations and as such are misleading as they are unable to be seen by the driver and could not be read without stopping and so do not comply with BPA code of practice. APCOA are required to show evidence to the contrary. In particular the No Stopping Zones section of the Chief Adjudicator's first annual report 2013 states "It is therefore very important that any prohibition is clearly marked bearing in mind that such signage has to be positioned and be of such size as to be read by a motorist without having to stop to look at and read the signs. Signs which are on the red routes unlike the ones indicating most parking restrictions are usually positioned to face the oncoming traffic rather than parallel to it. The BPA code of Practice states drivers must be given time to read and understand and agree or disagree to a contract. Stopping to do this does not mean anyone has agreed to a contract.

8) No landowner contract nor legal standing to form contracts or charge drivers. I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give APCOA Parking Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, APCOA Parking Ltd’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require APCOA Parking Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that APCOA Parking Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the landowner/occupier that entitles APCOA Parking Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to APCOA Parking Ltd to prove otherwise so I require that APCOA Parking Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between APCOA Parking Ltd and the owner/occupier, containing nothing that APCOAParking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

9) Photo evidence appears falsified. I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on top of the photos in the upper right hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged (Independent.co.uk 27/04/2018).

I would challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge APCOA that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

10) No Grace Period Given (Clause #13 BPA Code of Practice). As per section 13 of the BPA Code of Practice: 'You should allow the driver a reasonable 'grace period' in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.' Therefore, if a driver stops for a short period of time to read a sign, they must have the opportunity to leave and not accept the terms of an alleged 'contract'. A few seconds, I would argue, does not breach a fair 'grace period', and therefore APCOA are in breach of the BPA Code of Practice.


11)The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5) of the Protection of Freedoms Act 2012 (POFA). To support this claim further the following areas of dispute are raised:

The Notice to Keeper does not warn the keeper that, if after a period of 28 days, APCOA PARKING. has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA). POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights, a NTK must adhere to the following points:

it must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii) the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Upon reviewing the NTK, APCOA PARKING have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f). The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

12) Data Protection Act and BPA Code of Practice breached and no reasonable cause given for requesting keeper details from DVLA. To access DVLA data, parking companies must sign up to the Kadoe contract which allows the company to retrieve keeper data electronically for the reasonable cause of seeking recovery of unpaid parking charges. Kadoe contracts attach several conditions to the access including that the parking company seeks recovery from the driver or the keeper if the procedure in schedule 4 of the POFA is used. The contract states that data can only be used to enforce the ticket using Schedule 4 of POFA .

Hence if the parking company tries to claim liability against the keeper with no evidence to suggest they were the driver then the data would have been misused. If the keeper will not name the driver in circumstances where POFA can no longer apply, then the parking company would be breaching the Act if they continue to process their data.

13) Location of alleged contravention not accurately given in the PCN. POFA 9(1)A states that the Notice to Keeper “must specify the relevant land”. APCOA merely referred to “Central Terminal Area”. There was no indication where this was nor the type of facility, for example a rail station, a bus station, an airport, a port, etc…..

14) Location of alleged contravention not accurately described in the PCN. The PCN stated the alleged contravention was in a "car park". However, APCOA’s response to my appeal says that the alleged contravention was in a “lay-by for hotel drop-off”. This is quite different; as it is unclear what they are referring to, I contest that the PCN was invalid.


Taking the above fourteen points into consideration, I therefore request that POPLA uphold my appeal and cancel this PCN.

Redx

I am saying nothing because my advice on editing previous posts has been consistently ignored

splinternet

Redx, sorry, I don't follow you. Other than reasons 13 & 14 I added and you were OK with (see post #17) the rest is copied from previous appeals. Could you please elaborate?

Coupon-mad

Your appeal looks good to win, although I'd change #8 to the landowner authority template that's in the NEWBIES thread post #3, instead, as it quotes the BPA CoP.

splinternet

Many thanks, Coupon Mad. I have modified my appeal accordingly at point 8, as below. (Could I trouble you to assess my proposed answers at various points of the POPLA online appeal process, top of post #22)

APCOA Parking PCN no. xxxxxxxxx
POPLA Verification no. xxxxxxxxxxx

A PCN / Notice to Keeper was issued on xx June 2019 for an alleged contravention which took place on xx May 2019. I received the PCN, as the registered keeper of xxxxxxx, on xxxx June 2019. The PCN was for an alleged contravention of “BREACH OF THE TERMS AND CONDITIONS OF USE of the car park”, more specifically “dropping off or picking up outside designated areas at The Central Terminal Area”.

I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) APCOA not using POFA 2012. From their rejection of my initial appeal, it appears that APCOA are attempting to claim the charge is liable to them under airport bye-laws. I reject this and put them strictly to proof on which bye-law they claim is broken, and in any case, why this would result in an obligation to pay APCOA.

2) Airport Act 1986. Airport bye-laws do not apply to any road to which the public have access, as they are subject to road traffic enactments:

Airport Act 1986
65 Control of road traffic at designated airports
(1) Subject to the provisions of this section, the road traffic enactments shall apply in relation to roads which are within a designated airport but to which the public does not have access as they apply in relation to roads to which the public has access.

Both the Airport Act and Airport bye-laws say that bye-laws only apply to roads to which road traffic enactments do not apply

3) Amount demanded is a penalty. Also, it is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was positioned such that the motorist has not time to read it and consider it safely from a moving vehicle, and so has two options: (1) the motorist stops the car in the road just before the sign, therefore blocking and interrupting the flow of traffic, or (2) the motorist stops the car in the lay-by and walks back to read it. Neither case is satisfactory as a charge would be applied instantly the vehicle stopped.

4) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012. If APCOA want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and APCOA have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, the Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that APCOA have complied with these BPA Code requirements for the PCN issued so require them to evidence their compliance to POPLA.

The BPA code of practice also says 20.14 “when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.“' The PCN does not provide this information; this does not comply with the BPA code point 20.14.

5) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150) Airport land is not 'relevant land' as it is covered by statutory bye-laws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I put the Operator to strict proof so if they disagree with this point it would require them to show evidence including documentary proof from the Airport Authority that this land is not covered by bye-laws. POPLA assessor Steve Macallan 6062356150 September 2016 found that all land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012. As the site is not located on ‘relevant land’ the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer/keeper. Airport bye-laws do not apply to any road to which the public have access, as they are subject to road traffic enactments.

6) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103). In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant, and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions that a parking charge cannot be enforced against a keeper without a valid Notice to Keeper. As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party. The burden of proof rests with the Operator, because they cannot use the POFA in this case to show that I have not complied with terms in place on the land and show that I am personally liable for their parking charge.

The circumstance of full compliance with POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, a previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability - “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. ] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."

So no lawful right exists to pursue unpaid parking charges from me as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
"I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 5 above.

7) Misleading and unclear signage and not seen so no contract entered into or formed. The alleged contravention according to APCOA is in" breach of the terms and conditions of use of the car park. Signs are clearly displayed…" It would appear that signs at this location do not comply with road traffic regulations or their permitted variations and as such are misleading as they are unable to be seen by the driver and could not be read without stopping and so do not comply with BPA code of practice. APCOA are required to show evidence to the contrary. In particular the No Stopping Zones section of the Chief Adjudicator's first annual report 2013 states "It is therefore very important that any prohibition is clearly marked bearing in mind that such signage has to be positioned and be of such size as to be read by a motorist without having to stop to look at and read the signs. Signs which are on the red routes unlike the ones indicating most parking restrictions are usually positioned to face the oncoming traffic rather than parallel to it. The BPA code of Practice states drivers must be given time to read and understand and agree or disagree to a contract. Stopping to do this does not mean anyone has agreed to a contract.

8) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement.

9) Photo evidence appears falsified. I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on top of the photos in the upper right hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged (Independent.co.uk 27/04/2018).

I would challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge APCOA that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

10) No Grace Period Given (Clause #13 BPA Code of Practice). As per section 13 of the BPA Code of Practice: 'You should allow the driver a reasonable 'grace period' in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.' Therefore, if a driver stops for a short period of time to read a sign, they must have the opportunity to leave and not accept the terms of an alleged 'contract'. A few seconds, I would argue, does not breach a fair 'grace period', and therefore APCOA are in breach of the BPA Code of Practice.


11)The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5) of the Protection of Freedoms Act 2012 (POFA). To support this claim further the following areas of dispute are raised:

The Notice to Keeper does not warn the keeper that, if after a period of 28 days, APCOA PARKING. has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA). POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights, a NTK must adhere to the following points:

it must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii) the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Upon reviewing the NTK, APCOA PARKING have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f). The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

12) Data Protection Act and BPA Code of Practice breached and no reasonable cause given for requesting keeper details from DVLA. To access DVLA data, parking companies must sign up to the Kadoe contract which allows the company to retrieve keeper data electronically for the reasonable cause of seeking recovery of unpaid parking charges. Kadoe contracts attach several conditions to the access including that the parking company seeks recovery from the driver or the keeper if the procedure in schedule 4 of the POFA is used. The contract states that data can only be used to enforce the ticket using Schedule 4 of POFA .

Hence if the parking company tries to claim liability against the keeper with no evidence to suggest they were the driver then the data would have been misused. If the keeper will not name the driver in circumstances where POFA can no longer apply, then the parking company would be breaching the Act if they continue to process their data.

13) Location of alleged contravention not accurately given in the PCN. POFA 9(1)A states that the Notice to Keeper “must specify the relevant land”. APCOA merely referred to “Central Terminal Area”. There was no indication where this was nor the type of facility, for example a rail station, a bus station, an airport, a port, etc…..

14) Location of alleged contravention not accurately described in the PCN. The PCN stated the alleged contravention was in a "car park". However, APCOA’s response to my appeal says that the alleged contravention was in a “lay-by for hotel drop-off”. This is quite different; as it is unclear what they are referring to, I contest that the PCN was invalid.


Taking the above fourteen points into consideration, I therefore request that POPLA uphold my appeal and cancel this PCN.

BrownTrout

That's fine

splinternet

Very many thanks to everyone, I'll now submit the appeal.

splinternet

Very pleased to let you know both my POPLA appeals have been successful and APCOA don't wish to contest the appeals.

Profuse thanks to all who helped me with this.

The_Deep

Par for the course, Apcoa at least know when that are beaten.