POPLA appeal APCOA Luton Airport

ParkingNumpty

I am putting this up prior to my draft POPLA appeal, which I will post in due course.

Details of alleged offence
The vehicle stopped briefly (for roughly 1 minute) on the airport service road, not the main road, near the entrance to the Mid stay car park. It did not enter a car park or park anywhere.

Comparing this with an earlier appeal, they have not mentioned that the vehicle was on a road subject to Byelaws nor is there any mention of POFA not applying.

Rather confusingly the alleged contravention is for "picking up outside of a designated parking area", but instead of explaining that the land is covered by Byelaws (and POFA does not apply) they finish the letter with:
By choosing to leave your vehicle in the car park you agreed to the terms and conditions and as such agreed to abide by the condition set out on clear signs at the entrance and throughout the car park.

This last part is simply not true. The vehicle was not in a car park and was never left in one. It also seems to contradict the first part of the letter alleging the contravention was for picking up outside a designated area.

I would appreciate some help with:
1.) How to deal with the contradiction between the initial and final parts of the letter.
2.) The false claim of being in a car park.
3.) How to reword the parts of the appeal relating to the airport Byelaws as these would seem to apply but they haven't mentioned them.
4.) POFA has not been indicated as being "withdrawn" so I guess that makes the POFA wording more straightforward?

Thank you for any help that's offered.

This is my APCOA Parking appeal rejection letter. Sent via email.

Date
Dear xxxxxxxxxxx
PARKING CHARGE NOTICE NUMBER: xxxxxxxxxx
VEHICLE REGISTRATION: xxxxxxx
POPLA Verification Number: xxxxxxxxxx
CONTRAVENTION DATE: xx May 2019 xxxx
Thank you for your appeal received xx July 2019 against the above Parking Charge Notice. Having carefully considered the
evidence provided by you, we must advise your appeal has been unsuccessful on this occasion.
You were issued a notice having received an allegation of contravention at Luton Airport. Having investigated further, we
have found that your vehicle was pictured in breach of the above terms set by Luton Airport, picking up outside of a
designated parking area, having failed to enter the designated pickup and drop off zone or short term car park.
All restricted areas are signposted and clearly state that no stopping is allowed at any time to drop off, pick up or for any
other reason. CCTV and number plate recognition is in operation. Anyone in contravention of this restriction will be liable for
a parking charge notice of up to £80.00.There is a £3.00 Drop off Zone in place at Luton Airport. This was introduced to
ease traffic congestion at the terminal. We do however offer free parking at the Mid Term car park for up to 30 minutes.
Restrictions in place at Luton Airport do not allow passengers to enter or exit the vehicle when on the approach roads or
roundabout; even in the event of a forced stop due to traffic. This rule has been enforced to ensure the safety for pedestrians
and drivers around Luton Airport, as well as to maintaining the traffic flow.

[One small picture of 2 signs in an unknown location.]
The 2 signs are one above the other.

The signs reads as follows:
No Waiting
No Loading
No Parking
At any time
ANPR in operation

Restricted Zone
No stopping
(line obscured behind a horizontal pole of what appears to be temporary fencing)
drop off or pick up
CCTV and number plate recognition in operation
WARNING CHARGE OF £80
This is a private road

[Some pictures of the vehicle stopped at the side of the road.]
Some show the vehicle in motion and only 2 show the vehicle when stationary and loading/unloading. These 2 have timestamps 10 seconds apart.

The letter continues:

Luton Airport is a private property of London Luton Airport all the enforcement are carried out according to British parking
association (BPA) guidelines and APCOA being an approved operator of BPA is authorized to manage and enforce the
property on behalf of London Luton Airport. Any vehicles in contravention of the T&C of the Luton Airport are sent out to
DVLA for registered owner’s information under BPA guidelines.
Recently, the Court of Appeal unanimously dismissed the case of Beavis vs. Parking Eye [2015]. This case considered two
key arguments: (a) whether a Parking Charge for contravention of the parking conditions is unenforceable at common law
because it is a penalty; and (b) whether it is unfair and therefore unenforceable by virtue of the Unfair
Terms in Consumer Contracts Regulations 1999.
The judges ruled that the Parking Charge Notice that Mr Beavis had received from Parking Eye for overstaying a two-hour
limit "is not extravagant or unconscionable". They added that the terms and conditions of a car park should “provide a
disincentive to drivers which will make them tend to comply”, and that this is afforded by the Parking Charge Notice of
£85.00. The Judges went on to say that the charge was justifiable by “a combination of factors, social as well as
commercial”.
The guidelines issued by the British Parking Association make clear that they ‘would not expect this amount to be more than
£100.” We therefore believe that this parking charge is fair and reasonable at £80 reduced to £48 if paid within 14 days.
This sum has been approved and agreed by the landowner.
APCOA is not liable to justify the charge as set out in section 19.5 of the BPA guidelines, ‘If the parking charge that the

driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-
estimate of loss that you suffer. We would not expect this amount to be more than £100. If the charge is more than this,

operators must be able to justify the amount in advance.’
As per the BPA guidelines we believe the parking charge is fair and reasonable at £80 reduced to £48 if paid within 14
days. The sum, and calculations which have been made in setting it, have been approved and agreed by the landowner.
It is well established that a contract can be made by offer, in the form of the terms and conditions set out on the notice and
acceptance by parking a vehicle. If a motorist is unhappy with the contract terms, they should not remain in car park. By
choosing to leave your vehicle in the car park you agreed to the terms and conditions and as such agreed to abide by the
condition set out on clear signs at the entrance and throughout the car park.
As your vehicle was parked in contravention of the terms and conditions of the site we are satisfied that the notice was
correctly issued in accordance with the BPA code of practice, and therefore not able to waiver the charge on this occasion.
Therefore you now have a number of options:
Pay the Parking Charge Notice at the full price of £80 within 28 days.

How to pay
Online at (link removed)
Or send a Cheque or Postal Order made payable to APCOA Parking (UK) Ltd to: APCOA PARKING, PO BOX 222,
LOWTON WAY, HELLABY, SHEFFIELD S98 1NX.
You have now reached the end of our internal appeals procedure. You now have the option to make an appeal to POPLA -
The Independant Appeals Service. You can do this within 28 days of this letter by completing the online appeal form at
(link removed) quoting the verification reference number xxxxxxxxxx. Please be advised that if you opt for
independent arbitration of your case, the Parking Charge Notice will be considered at the full amount of £80. If you require a
hard copy of the POPLA form please contact our customer service centre on 0345 301 1151 where one of our customer
service agents will be happy to assist you.
By law we are also required to inform you that Ombudsman Services (link removed) provides an
alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to
participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA,
as explained above.
If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may
proceed with Court action against you.
Yours Faithfully
Appeals Department
APCOA Parking (UK) Ltd

Coupon-mad

OK so show us our draft POPLA appeal based on the most recent ones. dead easy v APCOA as their PCNs are non POFA, so keeper liability is not possible as long as you spell out why the PCN is deficient when compared to para #9 of the POFA.

ParkingNumpty

Thanks, CM.

I will probably need to amend the draft to fit the details I put in my first post.

Where do I find the details for POFA para #9?

This is the most recent appeal I could find for Luton Airport

(Removed to unclutter the thread.)

Umkomaas

A notice to keeper was issued on xx May 2019 and received by me (the registered keeper) of vehicle registration x on xx June 2019 for an alleged contravention

Furthermore, the notice to keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on 16th June 2018, and the notice to keeper was received 34 days later on 20th July 2018.

Well those two don't square up.

Why not simply tidy the whole thing up before just dropping it here for others to have to spot basic errors. It makes it much easier, and quicker for you to get this off to POPLA to see APCOA run away by return!

Coupon-mad

Where do I find the details for POFA para #9?

In the link in the NEWBIES thread to the POFA, or by Googling it!

This is the very simplest one to compare to para 9, and is completely non POFA in wording, so no telling us it looks like it complies...!

You can find the para 9 stuff in any other APCOA Airport POPLA appeal on any thread.

ParkingNumpty

My apologies. That's not my draft appeal. It was someone else's. I was simply responding to CM's request for the most recent POPLA appeal. Perhaps I misunderstood.

I appreciate all the help, but just feel rather overwhelmed by all the information and the steep learning curve.

ParkingNumpty

Herewith, my attempt at my POPLA appeal.

I am very grateful for any assistance given.

============================ My Draft Appeal ==============================


POPLA Ref x
APCOA Parking PCN no x

A notice to keeper was issued on 24th June 2019 and received by me, the registered keeper, for an alleged contravention of ‘Dropping Off or picking up outside designated areas’ at London Luton Airport. 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) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012.
2) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150) and Airport Act 1986.
3) The operator has not shown that the keeper is in fact the driver who was liable for the charge. (Ref POPLA case Carly Law 6061796103).
4) Misleading and unclear signage and not seen so no contract entered into or formed.
5) No reasonable cause for requesting keeper details from DVLA and/or misuse of DVLA data.
6) No landowner contract nor legal standing to form contracts or charge drivers.
7) Photo evidence appears falsified.
8) No Grace Period Given (Clause #13 BPA Code of Practice).
9) The amount demanded is a penalty and not a Parking Charge.
10) The Notice to Keeper does not comply with sub paragraph 9(2&5) of the Protection of Freedoms Act 2012.
11) Data Protection Act and BPA Code of Practice Breached.
12) The APCOA correspondence makes contradictory allegations.
13) The APCOA correspondence falsely claims that the vehicle was in a car park.
14) Unspecified location.



1) 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.

Furthermore, the Notice to Keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on 25th May 2019 and the notice to keeper was issued 30 days later on 24th June 2019.



2) Airport land is not 'relevant land' as it is already covered by statutory byelaws and is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. Therefore as 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 I would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by byelaws and/or other statutory instruments.

As POPLA assessor Steve Macallan found in case 6062356150 in September 2016, that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012. He stated ‘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. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal.’

Furthermore, airport byelaws 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 byelaws say that byelaws only apply to roads to which road traffic enactments do not apply.



3) 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 throughout (as I am entitled to be), 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 ONLY 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 personally not complied with terms in place on the land and show that I am personally liable for their parking charge.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the 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."

Therefore, no lawful right exists to pursue unpaid parking charges from myself 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 2 above.



4) The alleged contravention, according to APCOA, is in 'breach of the terms and conditions of use of the car park. Signs are clearly displayed throughout the area'. It appears that signage at this location does not comply with road traffic regulations or their permitted variations and, as such, are misleading, as they are unable to be seen and assimilated by a driver without stopping, and therefore do not comply with the BPA code of practice. APCOA are required to show evidence to the contrary.
I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: ''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 a size, as to be safely read by a motorist without having to stop to look and read the signs. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face 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.

There appear to be no readable or even visible detailed Terms and Conditions parking signs (Section 18.3 of the BPA Code of Practice), especially not from a moving vehicle. The Car Park Regulations section (section 1.8) of the ‘Car park booking and use terms and conditions’ displayed on the Luton Airport official web-site make no reference to picking-up or dropping-off regulations.



5) To access the DVLA data, parking companies sign up to the Kadoe contract which allows the parking 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 protection to freedoms act is used. The contract states 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 they would be breaching the act if they continue to process their data.



6) 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, or 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 APCOA Parking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.



7) I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and lack of location coordinates. By close examination of the photographs, the details are added as a black overlay box on-top of the photographs in the upper right hand corner. It is well within the realms of possibility for even an amateur to use 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 (See <Daily Mail Article on UKPC doctoring photos> for more information).

I would challenge APCOA Parking Ltd to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc).

Nevertheless, I challenge APCOA LTD to prove to POPLA that the CCTV and ANPR equipment that was specifically used for the alleged contravention are:

• Fit for purpose: approved technical design to comply with the relevant requirements and Acts of Parliament;
• Calibrated: calibration certificates for all components to be made available to POPLA to confirm they are current and relevant;
• Operator competency: Operator is competent and trained to use the equipment and also that the operator on the day was competent and converse with the Data Protection Act.
• Any CCTV vehicle used has a type approval and safety certification to be legally placed on a public road including certificates, MOT and other relevant documentation to show compliance with legal requirements after the modifications (installation of a high periscope type structure to mount a camera). Also a proof that the vehicle is exempt from the very same “terms and conditions” for parking outside designated areas, as numerous travels to the airport as passenger show the vehicle parked on public road with no warning or safety barriers.



8) 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.’

Given the above points of ambiguous signage, not facing the driving direction, including mixed fonts and images, it is unreasonable to expect a driver to be able to read the entire signage whilst driving. Therefore, if a driver stops for a brief moment 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 say does not constitute a fair grace period and therefore APCOA is in breach of the BPA Code of Practice.



9) The amount demanded is a penalty and is punitive and contravenes the Consumer Rights Act 2015. £80 is excessive given the very short period that the vehicle was stopped. The Parking Eye and Beavis case was characterised by clear and ample signage where the motorist had time to read and consider and also decide whether to accept or not. In this case signage is neither clear nor ample and the motorist has not time to read the signage or consider it as the charge was applied instantly the vehicle stopped.



10) 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 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:

The notice must be given by—

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.



11) As mentioned in point 5, in circumstances where the POFA can no longer apply then APCOA will be breaching the Data Protection Act if they continue to process the data obtained from DVLA.

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.



12) The correspondence from APCOA makes contradictory claims about the location of the vehicle and the alleged contravention.

On the one hand they state that the contravention was for "Dropping off or picking up outside designated areas" and "picking up outside of a designated parking area, having failed to enter the designated pickup and drop off zone or short term car park." This clearly means outside of any car park.

However, they then state that "The alleged contravention is a breach of the terms and conditions of use of the car park", and also claim "If a motorist is unhappy with the contract terms, they should not remain in car park. By choosing to leave your vehicle in the car park you agreed to the terms and conditions and as such agreed to abide by the condition set out on clear signs at the entrance and throughout the car park."

They cannot claim that any alleged contravention occured outside any car park and then also claim that the vehicle was in left in a car park and attempt to apply the terms and conditions of the car park.

That makes no sense at all.



13) As per point number 12. The correspondence makes the false - and fraudulent claim - that the vehicle was in a car park. That is simply not true.



14) The black overlay box in the upper right hand corner of the photographs all state "No GPS signal", and the only location given in the APCOA paperwork is a very vague "at London Luton Central Terminal Area". APCOA should state clearly where the vehicle was at the time of the alleged contravention.




In summary, these points demonstrate the claim by APCOA Parking (UK) Ltd is invalid and request that POPLA uphold my appeal and cancel this PCN.

Coupon-mad

You have NAILED it!

I predict APCOA will not even contest that and will throw in the towel next week.

ParkingNumpty

Okay, thank you CM.

Can I simply cut/paste into their web site or does it need proper formatting?

Coupon-mad

You need to read the NEWBIES thread about how to submit a POPLA appeal, post #3, because you cannot put that into their 2000 character box!

ParkingNumpty

Okay, have now submitted the appeal. Let's see how quickly they withdraw?

Thanks again.