Successful POPLA appeal (they gave up!)

Samtwatson · 8 June 2022 at 2:15PM

Hi all,

Ive joined the forum just to provide details of my company's recent successful appeal to POPLA and to provide these here to avoid clogging up the pinned thread. Thanks to the forum, they gave up and withdrew the charge.

Location - Haywards Heath railway station, RH16 1DJ

Firm - APOCA Parking

Reason - they withdrew the charge after the company appealed to POPLA.

Here is my letter to POPLA. It was a company car so a Notice to Keeper case. If interested, have a look at the car park on streetvew, talk about a lack of signage!

Dear POPLA,

On the 4th April 2022, APCOA Parking issued a penalty notice (PCN) to XXX (as keeper of the vehicle) claiming that the vehicle with registration plate XXX had been recorded via their automatic number plate recognition system for “Use of a Private Car Park without making a valid payment”. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.

As the registered keeper XXX refute this charge and require that this PCN be cancelled on the following grounds:

The Notice to Keeper does not comply with sub-paragraph 9 (5) and so is not POFA compliant
The is no driver liability
Inadequate signage
Lack of evidence of parking having occurred
The claim is being made under unspecified ‘railway byelaws’

Please see below for details.

1) The Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA)

Under schedule 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if the conditions stated in paragraphs 5, 6, 11 & 12 are met. In particular, these require that the keeper must be served with a compliant NTK in accordance with paragraphs 9(4) and (5), these state –

(4) The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

The applicable section here is (b) because the NTK was delivered by post. Having sent the notice by post, section (5) is then engaged and a 14 day limit on the issue of the PCN comes into effect. APCOA’s own documentation (attached) shows that the event to which they refer occurred on 18th March 2022, but they did not issue the PCN until 4th April 2022, 17 days after the suggested date of parking. The PCN therefore fails to comply with the POFA and XXX, as registered keeper, cannot be pursued for recovery of the charge.

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

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. As seen from the PCN, the driver of the car cannot be seen in the photos, indeed the photos are of such a poor quality that none of the occupants of the car can be seen nor any part of the interior.

Where a charge is aimed only at a driver, of course, no other party can be made to pay. There has been no admission regarding who was driving, and no evidence has been produced to indicate who it was. XXX is exercising its right not to name that person as it has done throughout. XXX cannot lawfully be 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 that XXX is 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.

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 an unpaid parking charge from XXX.

3) Inadequate signage

The alleged contravention, according to APCOA, is for “Use of Private Car Park without making a valid payment. There is adequate signage on entry and throughout this car park. All payment options are advertised on site and multiple signs within the car park inform drivers that they will be issued with a Penalty Notice if they fail to make a valid payment for the duration of their stay”.

APCOA have provided no evidence that such signage exists. Indeed, as shown in the photos below, there is in fact no such signage on the approach to, or within, the car park, nor for that matter any means to pay for parking. The signage does not therefore comply with the BPA code of practice and APCOA have provided no evidence to the contrary. XXX therefore refute the suggestion that any form of contract between the driver and APCOA was entered into on the date of the alleged parking.

XXX 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”

4) Lack of evidence of parking having occurred

The PCN issued by APCOA does not provide any evidence of the car having parked at the site. As shown on the attached PCN APCOA provide one time stamp, 06:46, and two photos. No evidence has therefore been provided by APCOA that confirms that the car was parked in the car park or even in the car park for any duration of time. In the absence of this, they are wholly unable to assert that the car was even parked at the site. Furthermore, both photos are of the front of the car and it is impossible to determine from these where the car is located or indeed if they were taken at different times. It is entirely possible then that the car was simply photographed twice at 06:46.

5) The claim is being made under unspecified ‘railway byelaws’

It appears that APCOA are attempting to claim that the charge is owed to them under unspecified ‘railway byelaws’. This is rejected and no evidence is given as to which byelaw they claim has been broken.

Regards