POPLA Grounds Appeal - Which one?

starnold44

Followed the newbies thread and submitted an appeal letter to APCOA for a parking charge at a train station.

They have rejected it and have said I can go down the popla route. What grounds of appeal should we choose?

Have a draft appeal that I can post after as well.

They haven't identified the driver and sending as a NTK

Fruitcake

Use ALL the appeal points available to you from post 3 of the NEWBIES.

Post your draft here for checking before you submit it.

CRAPCOA are easy to beat. They tend to be the favourite scammer of the GWR.

Get pics of the site and signage if you don't already have them, and compare the NTK with the PoFA to see if it is compliant.
If the car park is a railway asset then byelaws will apply so it will not be relevant land which gives you another point to add.

Don't forget to complain to your MP about this unregulated scam.

starnold44

Draft so far

As the registered keeper, this is my appeal about a Parking Charge Notice issued by APCOA for an alleged breach of the company's terms and conditions in the Norwich Station Car Park.

For the avoidance of doubt, the driver’s identity has not been provided and this appeal remains purely from the registered keeper.

Vehicle Registration Number ####
Date of PCN
PCN Reference ####
POPLACODE: ####

Summary of appeal:

1. Railway Land Is Not ‘Relevant Land’.
2. APCOA using Railway Byelaws for claims.
3. A compliant Notice to Keeper was never served - no Keeper Liability can apply
4. Appellant not being the individual liable.
5. No evidence of landowner authority
6. Non-compliant signage.
7. Bays are poorly and ambiguously marked

1) Railway land is not ‘Relevant Land’

Under Schedule 4 of PoFA 2012, section 1, it states that:
“(1) This schedule applies where –
(a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Following from this, in section 3, PoFA 2012 states that: “(1) In this schedule “relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”. And that: “(3) For the purposes of sub-paragraph (1) (c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question”.

Since byelaws apply to railway land, the land is not relevant land within the meaning of POFA 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 ask APCOA for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the rail authorities that this land is not already covered by byelaws. Railway land, being governed by byelaws, is not relevant land and Keeper Liability under POFA does not apply, and therefore APCOA are unable to pursue the registered keeper in lieu of the driver’s details.

POPLA assessor Steve Macallan found in 6062356150 in September 2016 that 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. 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.’

My understanding is that the owner of the vehicle is liable for any penalty, if it applies, and the owner has not been identified. As such, I am able to appeal as Registered Keeper (going by the POFA 2012 definition) but cannot be held liable under any byelaw because the Train Operator would have recourse only to pursue the owner via the Magistrates Court and that has not occurred. This is a third party agent pursuing the day to day keeper.

2) APCOA using Railway Byelaws for claims

By claiming a charge is liable to them, it appears that APCOA are attempting to claim this under Railway Byelaws. I reject this and put to them strictly to prove on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay APCOA. I also refer to Freedom of Information Act Request – F0013227 whereby the Department for the Secretary of State for Transport has categorically stated that no confirmation or change in laws since the Railways Act 1993 came into force, which empower any person or body other than the courts to impose a penalty for breach of Byelaws 14(1), (2) or (3) made under Section 219 of the Transport Act 2000 (as amended) and made operational on 7 July 2005.

Therefore, any breach of byelaws is a criminal offence, not a breach of any contract APCOA may say the driver entered in to. If the driver is found to have breached Byelaws 14 (1-3), the resulting penalty is paid to the government, not to APCOA or the railway. Further, byelaw offences are decided by the court, not by APCOA – the parking company or railway can only allege the breach.

3) A compliant Notice to Keeper was never served - no Keeper Liability can apply.

APCOA has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 of POFA 2012 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if
(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;
*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in POFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

4) Appellant not being the individual liable

APCOA has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. 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. Any person(s), with the consent of the registered keeper, may drive a vehicle as long as the driver is insured. 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 the Registered Keeper), 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 NTK.

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 APCOA 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 APCOA, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Understanding keeper liability

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:

“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 the 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 1 above.

5) No Evidence of Landowner Authority

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. I do not believe that APCOA has landowner authority and, as such, the operator has not met the requirements of this section of the BPA Code of Practice.

Section 7.1 states “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

Section 7.3 states “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

I do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a Train Operating Company (TOC) gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay APCOA (not that a keeper can be liable anyway on non-relevant land and APCOA cannot enforce byelaws themselves, only the Train Operating Company or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court). APCOA have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that APCOA are entitled to pursue these charges in their own right.

I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put APCOA to strict proof of compliance with all of the above requirements.


I would also like to formally request to see all evidence presented by APCOA regarding this appeal and the opportunity to refute any evidence submitted by APCOA regarding this appeal.

To quote Henry Greenslade; a highly respected, longstanding lead adjudicator of parking ticket appeals across the board (Council statutory tribunals as well as private parking issues via POPLA), with a reputation for fairness and high integrity.

From the Final Report:

''At POPLA, Assessors consider the evidence produced by each party, all of which evidence the other party has the opportunity to see and comment upon.''

and from page 15 of the POPLA Annual Report 2015:

“…it is certainly a basic principle of a fair appeals service that each party is given the opportunity to see the other party’s case and to comment upon it. This is the position at POPLA. Appellants should obviously receive the operator’s evidence in its entirety.''

Kind Regards

Coupon-mad

starnold44 wrote: »

Followed the newbies thread and submitted an appeal letter to APCOA for a parking charge at a train station.

They have rejected it and have said I can go down the popla route. What grounds of appeal should we choose?

Have a draft appeal that I can post after as well.

They haven't identified the driver and sending as a NTK

Did you read post #3 of the NEWBIES thread about what box (single standard choice) to tick for POPLA, and how to upload a full appeal of more than 2000 characters, and what to include in the appeal?

APCOA ones are easy by the way, you will win as long as the driver was never divulged.

starnold44

Yes saw about posting as a pdf but can't find where it says which box to tick....been searching for ages as been referred back to that by reading other threads but still can't find it lol

Redx

its the one called OTHER, as mentioned in the newbies thread , in RED

Coupon-mad

starnold44 wrote: »

Yes saw about posting as a pdf but can't find where it says which box to tick....been searching for ages as been referred back to that by reading other threads but still can't find it lol

Please read it again...the NEWBIES thread tells you!

1505grandad

You do not appear to have posted the paras re:-

6. Non-compliant signage.
7. Bays are poorly and ambiguously marked

presumably #6 is the very long point in the Newbies

The_Deep

Apcoa have been very reluctant in the past to pursue PoPLA appeals s where bye law land is involved. Let us know if they opt out.

[FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT][/FONT]

Umkomaas

I am the appellant throughout

Who else could be the appellant?

starnold44

APCOA have decided not to contest the appeal that I sent to POPLA :j