POPLA Appeal - Heathrow Terminal 5

shockuennss

Hello all, first time post here however I have previously posted on pepipoo (unfortunately can't link to this). 

I had paid a company I had found on a price comparison website for airport parking. On the company's website, it offered a parking service which appeared to be off-site parking, with transportation via minibus. Upon booking, I received an email which told me that the driver should call a number around half an hour from the airport to inform the company that they were on their way. When the driver rang on the day, they were told to instead come to terminal 5 drop-off, where they would be met by an employee who would take the vehicle - similar to a 'concierge' service. The driver obliged, and swapped with the employee at the drop-off section. There was a similar arrangement for the return of the vehicle upon arrival, where the driver was told by an employee to meet them at terminal 5 drop-off, where the employee of the company parked up and returned the car to the driver. Unfortunately, I (the keeper) have received 2 charge for use of the drop off zone following this. I was advised on Pepipoo to submit two appeals, the first one referencing non-POFA compliance as the driver was not identified, and the second also referencing non-POFA and also naming the parking firm who actually drove into the zone (and entered into the contract). I am still awaiting a decision on my second appeal, however my first was rejected by APCOA. This was what I submitted:


Dear Sirs,

I have just received your Parking Charge Notice to Keeper xxxxx for vehicle VRM xxxx

As the private land is under statutory control you cannot rely on Schedule 4 of The Protection Of Freedoms Act 2012 to hold the keeper liable. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the registered keeper.

There is no legal requirement to name the driver at the time and I will not be doing so.

I do not expect to hear from you again, or your debt collectors, except to confirm that no further action will be taken on this matter and my personal details have been removed from your records.


I am working on an appeal to POPLA based around non-POFA. I have used what I hope is the correct template for this appeal and adjusted it to fit the circumstances - I am just looking for feedback on this if possible? Hope this is all ok and in-line with the rules here! Was hoping to get feedback at pepipoo, but now I only have around a week left to submit so I am getting a little flustered with it.

Appeal is posted below:

shockuennss

POPLA Ref XXXXXXX
APCOA Parking PCN no XXXXXXXXXXXXX

A notice to keeper was issued on 23rd December 2021 and received by me, the registered keeper of XXXXXXX on 30th December 2021 for an alleged contravention of ‘Use of drop off zone without making a valid payment’’ at Heathrow Terminal drop-off T5. 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) APCOA not using POFA 2012
2) Airport Act 1986
3) Amount demanded is a penalty
4) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
5) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
6) The operator 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)
7) Misleading and unclear signage
8) No landowner contract nor legal standing to form contracts or charge drivers#

9) No cause for requesting details from the DVLA
10) Photo evidence appears doctored


1) From their rejection of my initial appeal, it appears that APCOA are attempting to claim the charge is liable to them under airport byelaws. I reject this and put them strictly to proof on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay APCOA.

2) 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) Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

4) 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 ANPR issued tickets so require them to evidence their compliance to POPLA.

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.

5) Airport land is not 'relevant land' as it is already covered by statutory bylaws 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 put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws.
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.’

6) 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 5 above.

7) The alleged contravention, according to APCOA, is in 'use of drop off zone without making a valid payment'. It would however appear that signage at this location do not comply with road traffic regulations or their permitted variations and as such are misleading – the terms of which are unable to be seen by a driver and certainly could not be read and assimilated 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 read by a motorist without having to stop to look at it." The terms of payment require an online portal to be used. This is not made clear on any signage that a driver could read without stopping. This clearly does not comply with the report.

8) 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, let alone allege 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 APCOAParking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

9) 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.

10) I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the alleged time stamps. By close examination of the photographs, the details (time, camera ID) are added as barely legible text over the top left corner. It is well within the realms of possibility for even an amateur to use free 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.

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.

I would challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge APCOA that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

I therefore request that POPLA uphold my appeal and cancel this PCN.

W47G

Well done for putting this together. It fits what I am dealing with. Many thanks.

B789

I'm sure some of the forum cognoscenti will correct me if I'm wrong but you have contradicted yourself in your appeal to POPLA as follows:

2) Airport byelaws do not apply to any road to which the public have access, as they are subject to road traffic enactments.

5) Airport land is not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012.

Can you show us the redacted PCN whereby APCOA are chasing you under airport byelaws? I thought they always used a standard PCN which is always able to be beaten due to it not being relevant land and therefore POFA does not apply.

This is the simple appeal I used to APCOA when someone drove my car through the T2 drop-off zone:

I am the registered keeper. I was not the driver. Your NTK is non POFA compliant. APCOA have no hope at POPLA, so you are urged to save us both a complete waste of time and cancel the PCN.

APCOA cannot hold a registered keeper liable. As a matter of fact and law, APCOA (as a longstanding BPA Parking operator) will be well aware that they cannot use the POFA provisions because this is not 'relevant land'. If the Airport wanted to hold owners or keepers liable under Airport Byelaws, that would be within the landowner's gift and another matter entirely, but not only is that not pleaded, it is also not legally possible because APCOA is not the Airport owner and your 'parking charge' is not and never attempts to be a penalty. It is created for APCOA’s own profit (as opposed to a byelaws penalty that goes to the public purse) and APCOA has relied on contract law allegations of breach against the driver only. The registered keeper was not that driver and cannot be presumed to have been, nor pursued under some twisted interpretation of the law of agency.

tw3028

Hello, I got a £40 parking ticket at Heathrow Terminal 3 from not paying a ticket in August and used the text provided by ‘shockuennss’ and my POPLA appeal was rejected. Are there any recommendations for next steps? I am now faced with an £80 charge. Any advice is greatly appreciated.

Grizebeck

tw3028 said:

Hello, I got a £40 parking ticket at Heathrow Terminal 3 from not paying a ticket in August and used the text provided by ‘shockuennss’ and my POPLA appeal was rejected. Are there any recommendations for next steps? I am now faced with an £80 charge. Any advice is greatly appreciated.

There are no "next steps" (awful phrase) you are not faced with any charge
the reason you would have lost is that you admitted to being the driver in your first appeal , big no no 

Coupon-mad

Just ignore APCOA.  Nothing will happen.