APCOA Heathrow drop off PCN

flyebye

Hello everyone,

First time post so I hope I'm doing this right.

I received a PCN for entering the drop off zone without paying the £5.. and now am getting asked to pay £80 (or the £40 reduced rate if paid within 14 days)

I've gone through the APCOA airport threads which I realise are mostly for Luton Airport so here's hoping I can get out of this Heathrow one..

I've put together the below appeal to APCOA (first-stage) I realise there is a much simpler first appeal template on the NEWBIE thread but just thought why not use this POPLA one and adjust it a bit so when the time comes for the POPLA appeal I will just re-use the below albeit with some wording changes.

The points are based on previous APCOA Luton threads I have come across but I've taken out the following points (my reasoning in brackets): 
- Misleading and unclear signage (to be honest they do have quite a few signs on the way to the drop off zone and on the airport website.. so not sure if I should include this anyway)
- Reasonable cause for requesting keeper details from DVLA (I assume the cause is that believe they captured the vehicle number plates on camera and so have got in touch with me, the registered keeper - although one of the arguments below is that the photo does NOT clearly show the number plates hence why I changed a previous points that other users used saying the photo was doctored - rather than saying doctored I am saying it does not even clearly show the number plate)
- No landowner contract nor legal standing to form contracts or charge drivers (I think their website says APCOA is managing the car park for heathrow so not sure this point is valid)
- No Grace Period Given (Clause #13 BPA Code of Practice) (it's a drop-off zone so not sure this is applicable)


Would really appreciate for you experts to take a look at what I came up with below and critique?

APCOA Parking PCN no x

A notice to keeper was issued on [xx] and received by me (the registered keeper) of vehicle registration [xx] on [xx] for an alleged contravention of ‘Use of Drop Off Zone without making a valid payment’. 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) Not using POFA 2012
2) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
3) You have not shown that the individual who you are pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
4) Photo Evidence does not evidence the vehicle in question

1) The notice was not issued under POFA 2012 and therefore the Keeper Liability provisions of Schedule 4 of POFA 2012 are not applicable on this occasion.

2) Airport land is not 'relevant land' as it is already covered by statutory byelaws and is specifically excluded from 'keeper liability' sub-section 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 APCOA to strict proof otherwise if you disagree with this point and would require you to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws 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. 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.’

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 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 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 (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."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 2 above.

4) I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the registration plates. By close examination of the photographs, the photos do not actually show the vehicle registration plate. The vehicle registration plates are clearly just added on at the bottom as part of the photograph. It is well within the realms of possibility for even an amateur to use photo-editing software to add these black 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 you to provide evidence that the vehicle is indeed the vehicle in question and that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc).
Nevertheless, I challenge APCOA to prove to 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 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.
• The CCTV vehicle used (I as a registered keeper found this through research and noticed when travelling from the Airport) 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).


In summary, these points demonstrate your claim is invalid and that you must cancel this PCN demand to me, the Registered Keeper.

Coupon-mad

That's fine but probably won't fit in the appeals box so just cut it down to bullet points.  You will win anyway, it's APCOA!

KeithP

No, don't do that.
It talks far too much about POPLA - what they must and mustn't do.

Instead, read this very recent thread...
Heathrow T5 Drop off Zone APCOA Parking

...and use the blue text template appeal easily found in the first post of the NEWBIES thread.

flyebye

Thanks for the quick reply! Here goes! Will keep this thread updated so hopefully if this ends up a win people can just easily use this..

flyebye

Quick question - they ask for the below as part of the appeal process - am I correct to say I tick the "Other" box

Click on the reason for your challenge

• My vehicle was stolen
• The contravention did not occur
• The amount specified on the notice is incorrect
• I was not the Registered Keeper/Driver at the time of the contravention
• Mitigating circumstances prevented me from parking correctly
• My vehicle has been cloned
• Other

KeithP

Correct.  

flyebye

KeithP said:

No, don't do that.
It talks far too much about POPLA - what they must and mustn't do.

Instead, read this very recent thread...
Heathrow T5 Drop off Zone APCOA Parking

...and use the blue text template appeal easily found in the first post of the NEWBIES thread.

Sorry Keith I just saw this and luckily havent submitted it yet - do you think I should just use a more generic version ie just say


A notice to keeper was issued on [xx] and received by me (the registered keeper) of vehicle registration [xx] on [xx] for an alleged contravention of ‘Use of Drop Off Zone without making a valid payment’. 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) Not using POFA 2012
2) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
3) You have not shown that the individual who you are pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
4) Photo Evidence does not evidence the vehicle in question 

In summary, these points demonstrate your claim is invalid and that you must cancel this PCN demand to me, the Registered Keeper.

flyebye

OK I don't know how to delete a post just yet but Keith I believe you are suggesting i just use this appeal below:

I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.

There will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require an explanation of the allegation and your evidence. You must include a close up actual photograph of the sign you contend was at the location on the material date as well as your images of the vehicle that clearly show the vehicle in question which at the moment does not

Is this sufficient as it doesn't really say much?

Coupon-mad

It makes no difference! 

flyebye

True - they will just reject anyway 

Coupon-mad

No, I predict they'll cave.