APCOA railway station Penalty Notice on company van

allaboutthedough

Hello,

Would appreciate some help and clarity as I have read the Newbies post and am still a bit confused because the situation involves a railway station ticket and a company vehicle.

APCOA gave me a windscreen "Penalty Notice" on my company van for being "parked in a restricted/unauthorised area" at a train station.

I am a railway engineer and was called out to attend an emergency at the rail track.
All the parking bays were taken up by other vehicles including my colleagues’ vehicles, so I parked on the kerb on double yellow lines!
However, the vehicle caused no major obstruction or hazard to any other person or vehicle.

I left a sign in the vehicle which we use whilst on call out which states my company's name, that the person in charge of the vehicle is on call out and my company mobile phone number.
I did not receive a phone call to request the vehicle to be moved – I can understand why to some extent.

I am supposed to get a permit from the station master in these call out situations but I could not see them and I’d received a call from my colleague whilst on route who had given me a brief explanation of what the emergency was so I knew I wouldn’t be too long on this visit. I knew I’d have to leave quickly and come back again with specialist tools.

The Penalty Notice mentions the Railway Byelaws and "any breach may result in prosecution and conviction that carries a criminal record. Section 219 of the Transport Act 2000 Railway Byelaws, section 14 under which APCOA Parking has the lawful authority to issue this Penalty Notice."

I know that if my company receive anything from APCOA, my company will pay the notice and deduct the amount from my wages, so I need to get APCOA to write and deal directly with me and keep my company out of it.

So, I understand I challenge the ticket as a hirer of the vehicle but I don't know what points to state in the letter.

Thank you for your time and appreciate your guidance.

Also, apologies for not being able to understand the information already provided on the Newbies post and via the links provided there.

Umkomaas

Just send an initial appeal around day 25 using the blue text template from the NEWBIES FAQ Announcement, first post, to hook them away from the lease company and get them dealing directly with you. Read in the first post of the Announcement about the strategy for doing this. The more you understand, the better you can deal with your penalty charge. 

In the meantime (before day 25) complain to the Train Operating Company and get them to intervene and cancel the ticket. Surely it's not in their interest to have emergency contractors being penalised in this way. 

D_P_Dance

I very much doubt that a TOC would take an employee/contractor to court while carrying out essential emergency repairs.  Tails do not wag dogs.  I would advice them to whistle Dixie. 

Fruitcake

Do as Umkomaas has advised and appeal the windscreen ticket around day 25 using either the template in blue text from the NEWBIES, or one of the edna basher letters also from the NEWBIES for company/hire/lease vehicles, naming you as the day to day keeper.

On a side note, your employer should not pay an unregulated private parking company and make a salary deduction. Does your employment contract really allow this? We are not talking about fines or penalties from an authority, we are talking about a private invoice from a private company. UK MPs have called these companies rogues, scammers, and bloodsuckers in parliamentary debate.

If you have a union rep, they should be all over this. Would your employer pay the organisers of a rock concert if they sent an invoice for a ticket? A private parking invoice is different.
In addition, paying the charge removes the motorist's right to appeal, which may be an unfair contract term, and a breach of the CRA 2015.

The PoFA, a law that has been around for nearly ten years allows a vehicle keeper, in your case, your employer, to transfer liability to the employee/hirer/lessee. Your employer should know this, and should comply with the law. If they do not, they could lay themselves open to legal action.
IT should also be noted that APCOA cannot take the keeper to court. Only the landowner can do that. ToC or Network Rail, or whatever they are called now.
As far as byelaws are concerned, a vehicle keeper can never be held liable. The driver can, and the owner may, but never the keeper, and the law says they are three different people.

In addition, unregulated private parking companies are not allowed to imply they have authority, and must not use words such as penalties or fines.
You should complain to the BPA about this misleading wording.

Coupon-mad

Personally I'd think twice about using the template (for your unique case) but definitely delay the appeal until day 26 to get as close to timing this out (6 months - easy to get there if you delay appeals as close as you dare).

They can't get the keeper data till day 29 at the very earliest so no danger and you should say you were driving, in your case!

I am a railway engineer and was called out to attend an emergency at the rail track.

That's why I wouldn't use the template appeal.  You are exempt from the byelaws and should appeal as driver with proof of your job call out and the note on the dash if you still have it.

State that you are exempt from the byelaws (read them and use the exemption). 

I copied this from another thread posted just the other day:
The car park is Railway Land is therefore covered under the Railway Act 1993 and the Railway Bylaws and the PN should be issued under Railway Bylaw 14

Which states

"no person in charge of any motor vehicle, bicycle or other conveyance shall park it on any part of the railway where charges are made for parking by an operator or an authorised person without paying the appropriate charge at the appropriate time in accordance with instructions given by an operator or an authorised person at that place".

Railway Bylaw 24 (6)

"breaches by authorised persons: an authorised person acting in the course of his duties shall not be liable for breach of any of the byelaws numbered 2, 4(2), 6(3) and 6(5), 7, 9, 10, 11(1), 13, 14, 15, 16(6), 17, 18, 19 and 20(1)

Railway Bylaw 24

1. Definitions

In these byelaws the following expressions have the following meanings:

“authorised person” means:

1.a person acting in the course of his duties who:

(a) is an employee or agent of an operator or

(b) any other person authorised by an operator

“Notice” means a notice given by or on behalf of an operator.

“Operator” means:

any person authorised to be the operator of a railway asset by virtue of him holding a licence granted in accordance with Section 8 of the Railways Act 1993 (as amended by the Transport Act 2000; as amended by the Railways Act 2005), and

those persons listed in schedule one

but excluding those persons listed in schedule two

“Previous byelaws” means those byelaws listed in the table of previous byelaws, which have been made in relation to the railway by:

an independent railway operator under section 129 of the Railways Act 1993, and

the Strategic Rail Authority under section 219 and schedule 20 of the Transport Act 2000".

I am not liable for the breaching of Bylaw 14 as i believe that I am an "authorised person acting in the course of his duties" under Bylaw 25. as an employee or agent of an “Operator” XXXXX ltd and was acting in the course of his duties, as shown in the attached documents.

allaboutthedough

Hello,

Thank you for everyone's input, I am extremely grateful.

My mother's not been well, so my daughter took over dealing with the penalty notice for me.

She appealed based on what coupon-mad said and APCOA rejected it, completely dismissing all the points made regarding being an authorised person.

They said:

"APCOA Parking (UK) Ltd operates as an AOS approved operator, in accordance with the British Parking Association Code of Practice. When parking on Railway land, the onus rests with the motorist to accept and to comply with the Railway Byelaws and the displayed Terms and Conditions of Parking. 

On the date above, the driver parked the vehicle in breach of the Terms and Conditions of parking which are displayed in the car park.

Whilst I have noted the points raised in your appeal, on the date in question, your vehicle was not appropriately parked within a marked bay as per the Terms and Conditions. The Terms and Conditions of Parking clearly state that ‘failure to park within a marked parking bay or causing an obstruction to other users' may result in a Penalty Notice being issued. There are parking bays allocated around the car park taking into consideration many factors such as the smooth running of the car park, staff access, convenience as well as access for emergency vehicles. If you are unable to park in a single marked bay due to a lack of availability you must seek alternative parking arrangements.

In future please ensure that you have parked your vehicle fully within an authorised marked parking bay to avoid incurring any further penalty notices.

Having reviewed the circumstances surrounding the issuing of the above Penalty Notice, and having considered your reasons for appeal, our decision is to uphold the Penalty Notice. 

You have now reached the end of our internals procedure, and have the option to either
Make Payment for the Penalty Notice

Submit a further appeal to the Independent Appeals Service (POPLA)."

My daughter decided to email Network Rail as landowner/employer of APCOA, but it turns out that it's Southeastern that employ APCOA there, so she emailed Southeastern, CEO and a customer relations officer responded stating:

 

“Our car parks are managed by APCOA and as well as managing the day to day running of our car parks, they also issue the Parking Notices in line with guidelines of the Railway Byelaws which we’ve agreed with them.

The reason you were given a Penalty Notice is because your vehicle was not appropriately parked within a marked bay as per the Terms and Conditions. On this day, your vehicle was parked on the double yellow lines causing obstruction with the waste recyclable unit at the bottom of the car park.  

I realise you were visiting the station on an emergency call with your company vehicle. Please note that all contractors must sign in at the station when parking their vehicles. Although your vehicle had the company name written on the side, the Car Parking Officer would not know you were working at the station as you had not signed in on that day. Unfortunately, we do not accept hand written notes on vehicles. We expect contractors to use the allocated parking bays around the car park, as this then allows easy access for any emergency vehicles that might need to enter and exit the station quickly.

If you remain dissatisfied with the outcome of your appeal, you have the option to make an appeal to POPLA – The Independent Appeals Service.”

 

I am so annoyed at this.It wasn't that hard for emergency vehicles to enter and exit and it was not a hand written note that I’d left in the vehicle.

As I explained in my initial post, I did not sign in and get a permit from the station master as I could not see them and I’d received a call from my colleague whilst on route who had given me a brief explanation of what the emergency was so I knew I wouldn’t be too long on this visit. I knew I’d have to leave quickly and come back again with specialist tools.

I did not explain this in the challenge as I didn’t want them to use that against me in any way.

I would really appreciate some advice on what to do next.

 Thank you very much

Coupon-mad

Nothing has changed about the advice already given above.

Appeal to POPLA on the last possible day (32 days from rejection) because it's all about getting past the six months, given this is a penalty.

POPLA paragraphs are suggested, as always, in the 3rd post of the NEWBIES thread.

Did the appeal admit to being the driver or not?

I know I said it wouldn't matter either way due to your exemption, but if you didn't say who parked then you can also add in POFA stuff.

basmatikid

Thank you for your response. 

I did as you said and appealed to POPLA on the 32nd day from rejection including the POFA stuff as I have not identified the driver.

POPLA have now sent me APCOA's evidence, and I understand from other posts on the forum that I should go through it and look for any mistakes or errors.

The first point I made in my appeal was “A compliant Notice to Keeper was never served - no Keeper Liability can apply” as APCOA have not sent a Notice to Keeper to me or my employer.

APCOA responded, “the Penalty Notice was issued under the Railway Byelaws. APCOA do not issue under the POFA 2012 and so this is not relevant to the case.”

The second point I made was “Railway Land Is Not ‘Relevant Land’”.

APCOA responded “the penalty notice was issued on Railway Land under the Railway Byelaws. The POFA 2012 does not apply on Railway Land, and therefore this claim is not relevant to the case.”

 

I understand from other posts that POFA is a highly important point, so does APCOA admitting that POFA does not apply, help me in winning this appeal?

 

I know that I should know the answer to this from all the information in the other posts, but I just can’t seem to grasp this point!

 

Thank you 

Fruitcake

The NTK was not issued under PoFA therefore the keeper cannot be held liable, so it is very relevant to the case.

Where byelaws apply, the keeper can never be liable, so it is also very relevant to the case.

Respond to both of those points stating APCOA have kindly stated that the keeper cannot be held liable, therefore the appeal must be upheld.

If APCOA have not commented on other any points, then say so, stating those points must be upheld.

basmatikid

Thank you.

They have addressed all the points I made which were:

- A compliant Notice to Keeper was never served - no Keeper Liability can apply.

- Railway Land Is Not ‘Relevant Land’.

- APCOA using Railway Byelaw for claims.

- Appellant not being the individual liable.

- Non-compliant, poor and inadequate signage.

- Lack of standing / authority from landowner.

Thanks to your answer, I know how to address the first 2 points and even the 3rd point as it links with these.

From other posts, I have read that them providing stock photos of signage is insufficient.

For the authority from landowner, they have provided a basic written agreement with the TOC which is insufficient with regards to Section 7 of the BPA Code of Practice. 

Please let me know if this is correct.

What has thrown me a bit is their response to "Appellant not being the individual liable" as I have not seen anything like it in other posts.

They responded:

"Although Mr .... references PoFA, as the Penalty Notice was issued under Railway Byelaws, PoFA is not relevant to the case.

Furthermore, as advised within the BPA Code of Practice, a Penalty Notice must not mention POFA 2012 as this is not relevant.

Although Mr .... has not named the driver on the date on question, this does not matter as under 14.4 of the Railway Byelaws, ‘the owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area’.

Furthermore, although Mr .... advises that he is the day-to-day hirer/lessee keeper of the vehicle, Mr .... does not provide any evidence to state that he is not the Owner of the Vehicle, nor does he provide any details of the Owner of the Vehicle within his appeal to POPLA."

Is there anything in particular I should comment on this please?

Thank you

Coupon-mad

I really wouldn't bust a gut except to point out how crap the signs are and there's no evidence of exactly where those Railway Byelaws even are displayed (if at all) on site, as opposed to where the car was stopped.  Byelaws must be displayed prominently in railway car parks before anyone can be bound by them.

You will either win or lose at POPLA and you will ignore APCOA if you lose, and being a (purported) byelaws case you are already half way to the 6 months to time it out.