APCOA Heathrow drop off PCN

BrownTrout

Start your own thread and why are you using the G*D damn awful template from CAG Parking forum
Do the appeal as stated in the newbies and then do a non pofa/airport land appeal to win @ POPLA
Simples.

flyebye

hello friends, i am back!

i see that we have had some visitors in this thread..

anyhow, back to my original post. So with the hopes of nothing happening after the 35 days APCOA said they would take to get back to me, I have just finally received a response from them and they have rejected my appeal so I will be going the POPLA route now.

Will take a look again at what to do but I imagine I would just use the same wording as my original post to appeal to POPLA

BrownTrout

To win this at popla you simply need to appeal on two grounds
1. notice to keeper is non pofa (explain why)
2. no keeper liability - explain why (airport -bye laws - attach them)

KeithP

flyebye said:

Will take a look again at what to do but I imagine I would just use the same wording as my original post to appeal to POPLA.

Take note of BrownTrout's comments, but it might be useful to read how the 'visitors' to your thread progressed things.

The third post on the NEWBIES thread also offers good guidance on how to appeal to PoPLA.

allquestionsnoanswers

Hi all, thanks for your help/guidance.  I today received an email from POPLA saying that APCOA had decided to drop the case as a "sign of goodwill"!   How kind of them.

Good luck flyebye - I can't imagine you'll get a different outcome.  Not sure the difference in timings though.

flyebye

Great to hear you won @allquestionsnoanswers! Hopefully, it happens to me too..

I plan to appeal based on my original draft which I referenced using other threads and also includes @BrownTrout's two points above. I've taken out the fourth point on the photo evidence being doctored as it probably isn't key.

Points as below:

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)

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.


Hopefully, the above is sufficient! @allquestionsnoanswers did you also use these points?

sonotsmart

Hi Flybye, any luck with the appeal?

BrownTrout

sonotsmart said:

Hi Flybye, any luck with the appeal?

@sonotsmart yes they will not contest. Its already known they will withdraw.  He will get an email from popla within next 10 days. 
£20k says I am right

allquestionsnoanswers

Well done FlyBye, and thanks again for everyone's help

flyebye

Hi all - just an update. I got a message  saying the appeal has been withdrawn!! This actually worked so a massive thanks to all that helped!! I hope this thread will help others that are going through the same. Best of luck!