Heathrow drop off charge - have I messed it up by already contacting them?

Potatobanana

Hi all, thanks for your help so far. @Fruitcake, thanks for agreeing to see a draft before I send it. Please see below (I've redacted dates/vehicle info for privacy):

POPLA Ref xxxxx

APCOA Parking PCN no xxxxxx

A notice to keeper was issued on xx xxxxx 2022 and received by me (the registered keeper) of vehicle registration xxxx xxx on xx xxxx 2022 for an alleged contravention of ‘Dropping Off or picking up outside designated areas’. 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 relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)

2) 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)

3) Misleading and unclear signage

4) Reasonable cause for requesting keeper details from DVLA

5) No landowner contract nor legal standing to form contracts or charge drivers

6) Photo Evidence appears doctored

1) Airport land is not 'relevant land' as it is already covered by statutory byelaws (attached) 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 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 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.’

2) 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 1 above.

3) The alleged contravention, according to APCOA, is “Use of drop off zone without making a valid payment”. It appears that signage at this location does not comply with road traffic regulations or their permitted variations and, as such, are misleading, as they are unable to be seen and assimilated by a driver 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 safely read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it.''

There appear to be no readable or even visible detailed Terms and Conditions signs (Section 19.2 of the BPA Code of Practice) in the drop off zone, especially not from a moving vehicle. 

4) The BPA Code of Practice states in section 21.7 “As well as meeting the POFA 2012 statutory requirements to be a Notice to Driver, your parking charge notice must tell drivers that you may be requesting information from the DVLA as to the registered keeper of the vehicle, and the ‘reasonable cause’ you have for making that request.”. As no reasonable cause is stated in the PCN, the PCN does not comply with this section of the BPA Code of Practice.

Furthermore, 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.

5) 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 APCOA Parking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

6) I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and lack of location coordinates. By close examination of the photographs, the details (time, date, camera ID) are added as barely legible text in the top left hand corner. It is well within the realms of possibility for even an amateur to use photo-editing software to add this 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 would challenge APCOA Parking Ltd to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc). 

I also 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.

In summary, these points demonstrate the claim by APCOA Parking (UK) Ltd is invalid and that my representation should lead to POPLA cancelling the APCOA Ltd demand to me, the Registered Keeper.

As a side note, I noticed on re-reading APCOA's rejection of my appeal that they contradict themselves, in that in one sentence they state I "explained that you are the registered keeper of the vehicle but were not the driver at the time the contravention occurred" (I did not state this in my appeal) and in another sentence they say "By providing us with the name and address of the driver who contravened the terms and conditions of using the Terminal Drop Off zone, we can reissue the PCN to them to seek recovery of the outstanding balance due in respect of this charge. As you have refused to provide us with these details, we will continue to hold you liable for this charge" (slightly more accurate, in that I did not name the driver). Is it worth mentioning anything about this in the POPLA appeal (even if it's just to help others with a template in future)?

Thanks

Fruitcake

That looks good to go once you have included CRAPCOA's incorrect statements about the keeper having identified the driver.

You could/should also make that a separate complaint to the BPA.

1505grandad

Just checking (probably not important in the grand scheme of things):-

Para 4  -  " The BPA Code of Practice states in section 21.7 “As well as meeting the POFA 2012 statutory requirements to be a Notice to Driver, your parking charge notice must tell drivers that you may be requesting information from the DVLA as to the registered keeper of the vehicle, and the ‘reasonable cause’ you have for making that request.”. As no reasonable cause is stated in the PCN, the PCN does not comply with this section of the BPA Code of Practice."

Section 21.7 is headed "Notices to Drivers"  -  is the above therefore relevant for issue of NTK only?

Should relevant quotes from 21.9 onwards headed "Notices to Keepers" be used?

Umkomaas

Were the dates of the parking event and the Date of Issue (plus 2 working days) of the NtK within the prescribed number of days per PoFA?

If they are outside those, then add that failure as a first point.

Potatobanana

Good spot 1505grandad! I've replaced reference to 21.7 to 21.14, which basically says the same thing:

" 4) The BPA Code of Practice states in section 21.14 “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.”. As no reasonable cause is stated in the PCN, the PCN does not comply with this section of the BPA Code of Practice."

Umkomaas - I did have a section in about the timelines at first, but I removed it because the time between the parking event and receiving the NTK was less than 14 days, which I think is within the required time limits?

Have added the following about their contradictory letter:

7) In their response to my original appeal to APCOA (submitted on xxxxxx, response received on xxxx), APCOA responded:

“In your appeal you have explained that you are the registered keeper of the vehicle but were not the driver at the time the contravention occurred. You have also declined the invitation to provide us with the full name and address of the driver. Whilst we appreciate your comments, it is not sufficient grounds to warrant cancellation of this PCN. As stated above, the terms and conditions of using the drop-off zones are displayed by way of clear signage. It is the responsibility of the motorist to read and comply with the signage on site. As the registered keeper of the vehicle, it is your responsibility to know who is driving your vehicle at any given time. By providing us with the name and address of the driver who contravened the terms and conditions of using the Terminal Drop Off zone, we can reissue the PCN to them to seek recovery of the outstanding balance due in respect of this charge. As you have refused to provide us with these details, we will continue to hold you liable for this charge”

In their first sentence they state the I was not driving at the time, later state that I have refused/declined to provide them with details of the driver. In my original appeal I stated that “there will no admissions as to who was driving and no assumptions can be drawn”. I refer again to point 2) above; 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. I question whether APCOA fully considered my original appeal given that their response was contradictory and they do not appear to be sure of the contents of my original appeal.

One last thing... I recently had the pleasure of revisiting the drop off zone and have pictures of signage displayed. Several pictures were taken and most of them a blurry, i.e. the signs are unreadable when in a moving vehicle doing under the speed limit for the drop off zone. Additionally no signage that is readable states the cost of the "fine" if failing to pay, which i think is in contravention of BPA CoP:

19.4 If you intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give ’adequate notice’. This includes: • specifying the sum payable for unauthorised parking • adequately bringing the charges to the attention of drivers, and • following any applicable government signage regulations.

Have I read this correctly, and if so, is it worth including?

Thanks

Fruitcake

Don't get too bogged down with their petulance regarding you not identifying the driver.

It is a case of , "Whaaa, whaaa, I'm going to throw my dolly out the pram because you haven't told us who was driving, meaning we can't get any money from you. Boo-Hoo."

Not doing something you are not required to do so by law is not the same as refusing.

Potatobanana

Thanks all - appeal submitted - don't worry @Coupon-mad, that sentence did not appear in my appeal! Fingers crossed APCOA drop it without providing evidence and I don't have to do anything else!!

Potatobanana

Evening all, I recently heard from POPLA that the parking operator has "withdrawn the appeal as a gesture of good will". No parking charge for me. Happy days!! Thanks so much for your help all, keep up the good work.

Coupon-mad

Very good news - and thanks for updating us!

ak_83

Umkomaas said:

Have we messed it up by contacting them, or can I proceed with the bog-standard approval process?

Doesn't sound like you have. 

Simply use the blue text template initial appeal from the NEWBIES FAQ Announcement, first post, with an extra sentence stating they've failed to meet the strict requirements of the Protection of Freedoms Act 2012 (Schedule 4) for them to be able to hold the registered keeper liable. 

A further sentence to the effect, if they're going to reject your appeal, they must provide you with a POPLA code, where you will get this cancelled, and you want a full refund of the drop-off fee payment you've made to them, or you will be reporting their retention of the fee to Trading Standards, and you will be taking advice as to whether this action is tantamount to fraud, with reports being made to the BPA and DVLA. 

I'd anticipate them dropping this like a hot potato.

Can someone please share the link to the "NEWBIES FAQ" where I can find the blue text template? 

Thanks