APCOA - Keeper/Driver Query

Coupon-mad

Yep, ignore the NTO.  They pretend these are penalties so are 'allowed' to issue an NTO but it further confirms this is non-POFA.

dan37_dan

APCOA have provided their Operator evidence pack, a 41 page doc. 

APCOA can confirm that this appeal was rejected as:

A. The vehicle in question was parked within xxx Station Car Park which is operated by APCOA Parking (UK) Ltd on behalf of SE Trains Limited, parked in a Permit Holder only area before the designated time, without a valid permit.

B. Although Mr xxxx advises that no admission of who was driving the vehicle on the date in question will be made, as per the Railway Byelaws Section 14, 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.

C. As this location is on private railway land, APCOA operate under the Railway Byelaws.

D. Mr xxxx has admitted within his appeal to being the keeper of the vehicle and is therefore liable for this Penalty Notice as per the Railway Byelaws.

E. As this Penalty Notice was issued on Railway Land, APCOA operate under the Railway Byelaws. Therefore, in this instance the registered keeper is liable, and APCOA are unable to transfer liability to the driver.

F. The appellant has not claimed to hold, nor have they provided evidence of a valid Permit within their appeal.

G. The Vehicle was parked within a Permit Holders Only Area before the designated time without a Valid Permit. Therefore, as per the Terms and Conditions of Parking 'failure to purchase a valid parking session, APCOA Connect session or valid parking permit' may result in a Penalty Notice being issued.

H. Furthermore, as this vehicle was parked in an area designated for Permit Holders only before 9.30am Monday-Friday, this may have caused an obstruction to other users of the car park who do possess a valid Permit from using the spaces intended for them.

I. As per the Terms and Conditions of Parking, ‘failure to park within a marked parking bay or causing an obstruction to other users may result in a Penalty Notice being issued.

J. Upon searching the APCOA payment services, a daily ticket could be located for this location on the date in question however, this still did not permit the vehicle to be parked within this area on the date in question before the designated time.

They go on to say.............

Although APCOA appreciate the points raised by Mr xxxx, xxx Station Car Park is located on Private Railway Land and therefore operates under the Railway Byelaws. APCOA do not enforce, nor do they issue Penalty Notices under the Protection of Freedoms Act 2012 (POFA) and therefore, the above mentioned by Mr xxxx is not relevant in this case. A notice to owner is only sent should the Penalty Notice not be responded to within 28 days of issue, as this Penalty Notice was appealed within the 28 days, no notice to owner was sent at this time. However, a Notice to Owner was sent on the xxth April 2022 as payment was not made within the given 28 days after rejection. Mr xxxx has admitted within his appeal that he is the registered keeper of the vehicle and so as per the Railway Byelaws Section 14, 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. Therefore, Mr xxxx is liable for this Penalty Notice as this Penalty Notice was issued on Railway Land, APCOA operate under the Railway Byelaws. Therefore, in this instance the registered keeper is liable, and APCOA are unable to transfer liability to the driver. 

They provide an in date and fully singed underacted contract with the landowner.

Pictures of the signage and a map of the locations of these signs within the car park are also contained within.

They comment with:

As can be seen from the photographic evidence attached in Section E of this evidence pack, signage located within the car park are clear and concise, and in line with the guidelines outlined by the British Parking Association Code of Practice (BPA). It is the responsibility of the motorist to ensure that they have read and understood the Terms and Conditions, before making use of the Parking Services to avoid incurring a Penalty Notice. The signage also details, the various methods of payment, the Operator’s details, and the contact information for the APCOA Parking Customer Support Team had the individual required any further assistance. Upon entering xxx Station Car Park, the motorist would have passed a Terms and Conditions board which clearly states the result in breaching any of the displayed Terms and Conditions Is a fee payable. Further to this, there is clear signage located around the car park for the motorist to view and clearly outlined with road markings and signage is the ‘Permit Holder’s Only before 9.30 am Monday to Friday’ areas. The ‘Beavis Case’ does not apply in this instance and therefore the above referenced is not relevant to this case. 

They also provide all the communications provided throughout the length of this nonsense.

They finish with........

For the reasons provided above, we believe that the Penalty Notice was correctly issued. 

On the date in question, the individual entered onto private land freely and in full acceptance of the terms of parking clearly displayed. A tariff and terms and conditions are offered; and by remaining in the car park, these are accepted. 

It is the individual’s responsibility prior to leaving their vehicle to ensure that a valid payment has been made as per the terms and conditions, and that the vehicle has been parked in accordance with the terms and conditions of that site. The individual breached the Terms and Conditions of Parking 

So in response?

Other than mentioning the signage again and countering what they are saying (but already done this in my appeal) where do I go now?

They provide pics of a sign at the CP entrance which clearly shows the sign being obstructed ( https://ibb.co/zS6HjHw ) in that pic at least, they also provide details on signage written on the road ( https://ibb.co/LNG1fKQ ) anyone would only see this if looking down as they walk/get out of any car? They admit to being non POFA.

Trainerman

I find it interesting that they keep banging on about the owner and then taking that to saying that the keeper is liable. Even my goldfish knows that it says in big letters on the V5 that keeper is not owner.

I know that some of the people in these PPCs have difficulty tying shoelaces, but really !!!!

Coupon-mad

Fruitcake said:

Wait to see what APCOA do about the appeal. Did the NTO arrive by day 56? It doesn't matter if it did because the wording will not have been PoFA compliant.

This is APCOA's response, so it is comments time by the OP this week.

The question is whether the entire byelaws are displayed on a sign where the driver could have read them. Not just an entrance sign with a P on it?

dan37_dan

Thanks both.

So I rebut on the following:

1) Compliant Notice to Keeper was never served - no Keeper Liability can apply

I simply state Registered Keeper is not the owner therefore not liable.

I ignore 'APCOA do not enforce or issue Penalty Notices under POFA (Protection of Freedoms Act) 2012 and therefore, anything mentioned in regards to this is not relevant to the case. '

2) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.

I simply state Registered Keeper is not the owner therefore not liable.

I ignore 'APCOA do not enforce or issue Penalty Notices under POFA (Protection of Freedoms Act) 2012 and therefore, anything mentioned in regards to this is not relevant to the case. '

3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. 

They mention London & Southeastern Railway in their rebuttal but the 'contract for parking enforcement and landowner authority' is between SE Trains Limited and APCOA, this worth mentioning?  

Also both signee's have no name just a 'Position' "Contract Manager" assigned to them, anything worth mentioning?

4) The signs in this car park are not prominent, clear, or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. 

Comment on the fact that the entire byelaws aren't displayed on any sign.

Comment on the fact that in their own evidence one of the signs is in fact blocked from view.

Do I need to again comment on the fact the signs aren't legible or seen buy anyone driving passed them, basically once again providing evidence to the poor signage?

Coupon-mad

None of the above except point 4.  The others won't win.  Pick the right final battle now.

You can't add new evidence but as I've said (twice, I think) where is their evidence as to where the byelaws are displayed?

You won't be paying anyway but give the comments about the lack of evidence of byelaws displayed, your best shot.  If they were not placed anywhere that the driver could read them, then he/she isn't bound by the byekaws.

Is there a picture of the byelaws sign in evidence at all?

Do APCOA show a map of where that byelaws sign is, as opposed to where the car was?

If the tariff was paid, what was the PCN actually for?

There might be an argument that there was no breach of byelaw 14 (which I think is about not paying a tariff?) because a ticket was paid for.

The operator has tried to conflate their own contractual t&cs (on a different sign) with a byelaw offence that is purely about failure to pay for parking.  Both the BPA CoP and the new (much better and clearer) DLUHC CoP say that contract law and t&cs must not be conflated with byelaws. The allegation and basis of charge/claim must be clear - it's either an alleged byelaws breach or it is a parking charge 't&cs' alleged breach and APCOA's evidence seems muddled.

dan37_dan

Thanks. 

They mention byelaws in their pack but mostly refer to 'Terms and Conditions of Parking' which to me aren't the same thing. If they are the same thing then yes they do show a map of where the car was versus where these T&C's signs were, they include actual photos of the signs from the car park but as you can see even their own photo of the T&C's is obstructed and even if it wasn't its not large/prominent enough to be read from a moving car.

https://imgbb.com/zS6HjHw
https://ibb.co/7Sd1T4L

They acknowledge a tariff was paid and show proof of that, the PCN was due to the car being parked in a permit bay so they are saying 'failure to purchase a valid parking permit' and 'causing an obstruction to other users' which is displayed on their T&C's sign.

https://ibb.co/C0Cr6g1
https://ibb.co/n8LxWBG
 
Agree on the muddled APCOA evidence, worth adding this to the POPLA comments? 

Coupon-mad

You need to narrow this right down for the fairly clueless POPLA assessors.  This is the only important point:

'Terms snd conditions' are not the same as byelaws.

I asked:

Is there a picture of the byelaws sign in evidence at all?

You said 'yes' but the answer is 'no'.

You have not shown us a single sign of railway byelaws.  APCOA merely show pics of contractual t&cs and have utterly conflated two different things.  The t&cs signage could potentially give rise to a PARKING charge notice, albeit the £100 is obscured and not prominent enough to meet the Beavis sign high bar.

APCOA's own 'Terms and conditions' signs CANNOT give rise to a PENALTY charge notice that relies on Byelaw 14.  Nowhere is byelaw 14 displayed, nor are there any displayed railway byelaws in evidence, at all.

This is your winning point if you word it so POPLA get it.

dan37_dan

Any comments, do you think this is worded in that manner?

Dear POPLA Assessor,

Ref. POPLA appeal xxxxxxxx

In response to the "evidence pack" APCOA Parking - EW have submitted I ask the POPLA assessor to consider the following in further support of my original POPLA appeal as submitted on xxxxxx.

Throughout APCOA have conflated contract law t&c's with railway byelaw 14. Both the BPA CoP and the DLUHC CoP say that contract law and t&c's must not be conflated with byelaws. 

DLUHC CoP

E.1 General

Where byelaws apply in respect of parking on controlled land the parking operator must make clear in all communication whether they are enforcing the byelaw, through the appropriate legal procedure for their enforcement, or pursuing a complementary contractual obligation.

In addition APCOA have provided no evidence of any signage erected at the car park site displaying the relevant byelaws. 

APCOA merely show pics of contractual t&c's and have utterly conflated two different things. If applicable in this case (which its not) The t&c's signage could potentially give rise to a PARKING charge notice, not a Penalty Notice that has been issued, albeit the £100 charge is obscured in their evidential picture (page 21) and not prominent enough to meet the Beavis sign high bar.

DLUHC CoP 3.1.3 (Signs)

k) where the parking operator is operating controlled land subject to byelaws, indicate the requirements those byelaws impose in respect of parking and the sanctions that apply.

I respectfully request that the appeal be upheld.

Yours Faithfully,

xxxxxxx

Coupon-mad

I wouldn't quote the DLUHC CoP because it's not implemented yet and so POPLA aren't bound by it at all.  Mention it in passing, but don't quote it.

Quote the BPA CoP.

I would also use the full phrase 'APCOA have only shown in evidence 'terms and conditions' signs.  They have shown no images at all of any Railway Byelaws sign.

Read the Railway byelaws and quote from the bit that says something like the byelaws 'must be displayed at that place'.