APCOA Popla Station Draft Appeal Wording

Kite2010

Afternoon all

I've been asked by a family member to deal with a parking charge they received when picking someone up from the local station, the train was delayed meaning they went over the "20 minutes" pick-up time.  Sent the initial appeal using the wording from the Newbies thread as well as complaining to SWR, as expected the initial appeal was unsuccessful and they have given a POPLA code.

Using other threads for station parking with APCOA I've put together this and I was wondering if one of the kind experts would spare a couple minutes to glance over it, just in case things has changed.  Thanks in advance:

"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 condition in the *Station Name* railway station car parking on the XX April 2021.
For the avoidance of doubt, the driver’s identity has not been provided and this appeal remains purely from the registered keeper.
The alleged breach of the company's terms and condition is “Use of Private Car Park without making a valid payment”
Summary of appeal:
1. Railway Land Is Not ‘Relevant Land’.
2. APCOA Using Railway Bye law for claims.
3. Appellant not being the individual liable.
4. Non-compliant signage.
5. Lack of standing / authority from landowner.
6. Bays are poorly marked or ambiguously marked.

7)No planning permission granted for ANPR Cameras/signage

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.’
Clearly, I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given. POPLA Assessor, if you think that looking at the Notice to Driver instead, and comparing that to the POFA is acceptable (as happened in a very wrong 'Gemini Parking' POPLA decision prior to Christmas that is in the public domain and needs addressing as a terrible POPLA error and woeful lack of POFA training) then you are not correct, must NOT take that step and must refer this case first, to your Lead Adjudicator, because POPLA is not entitled under any rule of law to make a finding against a registered keeper in a case without a Notice to Keeper. This will continue to be stated in appeals until all POPLA Assessors get this simple matter right.

2) APCOA Using Railway Bye law for claims
By claiming 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) 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. (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. 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.
Not being the owner of the vehicle, under the Railway byelaws the registered keeper of the vehicle cannot assumed to be the owner anymore than they can assumed to be the driver.
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.
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."

(continued)

Kite2010

Pt 2:

4) Non-compliant signage
APCOA signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. Entrance signs which are mandatory under the code are not visible and do not follow paragraph 18.2 of the code.
There was neither contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case. For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park, and furthermore a Notice is not imported into the contract unless brought home “so prominently that the party ‘must’ have known of it” and agreed terms. I contend that this is not the case, and question the fact that the driver saw any sign specifying the amount of the ‘fine’ that would be due, and so there was no consideration or acceptance and no contract agreed between the parties!
In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:
In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.!
Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:
This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.
Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.!
It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge, which is hidden in small print. Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.!
This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''
From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put APCOA to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.!
The letters seem to be no larger than .40 font size going by this guide:
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''
...and the same chart is reproduced here:
''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.!
''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''!
So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':!
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.!
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.
This judgment is binding case law from the Court of Appeal and supports My argument, not the operator's case:
This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put APCOA to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require APCOA to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. Rather interesting that the pictures that came with the notice had no site entrance photos

Furthermore, APCOA claims there is another operator sharing boundary with it on the railway land and the ticket displayed by the driver is that of the other operator. POPLA should note that the only visible rates as you drive through the car park is that of the other operator. This visible rate is what the driver saw and the rate matched what the meter machine (within metres of where the car was parked) charged the driver. The questions needs to be asked of APCOA why their rates are not as visible as that of the other operator and why they, knowing, that there is a danger of drivers being mislead do not have clear and legible signs with their rates and also legible notice to guide drivers not to use the other operators machine.

5) Lack of standing / authority from landowner
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. 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 APCOA’s mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a 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 (TOC) 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 APCOA 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

6) Bays are poorly marked or ambiguously marked.
Furthermore, the parking spaces which exist are poorly marked, in some cases the marking have all but disappeared, in wet weather, such as the date in question, this is further exacerbated.

 

8)No planning permission for ANPR Cameras/signage

I require APCOA to provide a full copy of the planning permission document from Test Valley Council for the ANPR cameras as well as the signage, giving them permission to have the cameras & signs."

 Also when on the POPLA website, which of the options should be used to "appeal" the ticket, go down the "Other" route from the start to attach the appeal as a word document?

Redx

Choose other , ignore the rest , upload as a pdf , Apcoa will likely chuck in the towel , because a keeper has no liability , pofa does not apply , the Driver has not been identified etc

On a skim read it looks ok and the main issues are covered , so you have a good grasp of all the basics , so a 10 from Len. 😁😁👍👍

Umkomaas

Again on a skim read you seem to have the main areas boxed off - PoFA, not relevant land, bylaws. APCOA have a pretty consistent record of not arguing this through POPLA, give up ...... and save themselves the £30 POPLA fee.  What's not to like!  

But a pity they forced you into all the research and drafting to produce your appeal.  Hopefully the new National Code of Practice will include some sanctions for this all-too-frequent occurrence. 

Kite2010

Thanks both, I shall submit it later this evening

Umkomaas

Kite2010 said:

Thanks both, I shall submit it later this evening

Don't forget, attach it as a pdf file and tick 'Other' as the reason for the appeal. 

Kite2010

And it's done.

My family member was going to pay the £50 because they through it was their own fault for arriving early

Kite2010

Finally received the outcome today, and sadly the parking industry funded POPLA sided with APCOA.

I will quote the rubbish they put when I get home.

Although a spanner in the works is that the driver on the day in question has died (but he wasn't the registered keeper). Not sure if that is worth mentioning to the scammers so they leave the keeper alone.

Le_Kirk

Was the POPLA appeal done in the name of the keeper?

Kite2010

Le_Kirk said:

Was the POPLA appeal done in the name of the keeper?

It was done in the name of the keeper

Kite2010

Part 1

Assessor Name

Amy Smith

Assessor summary of operator case

The operator issued the Parking Charge Notice (PCN) for reason: ‘Use of Private Car Park without making a valid payment.’

Assessor summary of your case

The appellant has raised the following grounds of appeal: • Railway land is not relevant land.

They say that the operator is using Railway Byelaws to issue claims. The appellant refers to the Protection of Freedoms Act (PoFA) 2012 and states that as the registered keeper they are not legally liable as the act does not apply on this land. They say that they ask the operator for proof of otherwise and evidence of documentary proof from the rail authorities that this land is not already covered by Byelaws. They say that keeper liability under PoFA 2012 does not apply and as such they cannot pursue them as the keeper.

They refer to another case made in 2016 by another POPLA assessor. They mention the Freedom of Information Act (FOIA) F0013227 where by the secretary of state for transport has stated that no confirmation or change in laws since the Railway Byelaws came into effect.

They say that any breach of Byelaws is a criminal offence not a breach of terms and conditions and say that if the driver breached the Byelaws they would be required to pay the government not the operator.

• They say that the appellant is not the individual liable. They say that the operator has not proved it is pursuing the driver liable for the charge and refers to another case decided by another POPLA assessor where the assessor was not confident that the driver as been identified. They say that under the Railway Byelaws the registered keeper cannot be assumed to be the owner. They say that it is their right to name the driver and they choose not to.

• Non-compliant signage. They say that the signage at the site is not prominent, clear or legible from all spaces and there is insufficient notice of the sum of the parking charge. They say that entrance signs are not compliant with section 18.2 of the BPA Code of Practice. They say that there was no contract or agreement listed with the signage, and the charge is out of proportion which was discussed in the case of Beavis v Parking Eye Ltd.

They refer to another POPLA assessment made by another assessor where it was held that the charge was inadequate. • Lack of standing/ authority from the landowner. They say that Section 7 of the BPA Code of Practice mentions the requirements of landowner authority in section 7.1 and 7.3. they say that they do not believe that the operator’s agreement as a contractor issuing PCNs and letters gives the firm any rights to sue in its own name. they say that this does not comply with the BPA Code of Practice and not enough to hold them liable in law to pay APCOA. They say that the operator has no standing on this land and requires the operator to provide a full copy of the contemporaneous, signed and dated, unredacted contract with the landowner.

• The bays are poorly or ambiguously marked. They say that the spaces are poorly marked and in some cases the markings have all but disappeared which was the case on the date in question as it was wet weather which further exacerbated the situation. • No planning permission granted for Automatic Number Plate Recognition (ANPR) Cameras/ signage. They require a full copy of the planning permission document from Test Valley Council for the ANPR cameras as well as signage granting permission to have both erected on this land. [/quote]

(Paragraphs added to what was originally on POPLA to add reading)