APCOA Train Station ticket - POPLA Motorist Additional Comments

fuziduck

My case is very similar to this one who has just lost against POPLA, I had appealed to POPLA with a very similar appeal letter. 
https://forums.moneysavingexpert.com/discussion/6366638/windscreen-ticket-at-train-station/p2

It seems that on this basis I will likely also lose given the evidence provided by APCOA in my case is almost identical to that case.

I am in the last day of my 7 day window to provide additional comments in response to the evidence provided by APCOA. Is there anything that I should respond with that may eek out something extra from the POPLA assessors?

They appear again to be relying on Byelaw 14 with this comments:

G. As this Penalty Notice was issued on Railway Land and operated under the Railway Byelaws, APCOA cannot transfer liability to the driver of the vehicle.

J.  has admitted that he is the keeper of the vehicle and so as per Railway Byelaw 14,4,1 ‘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, is liable for this Penalty Notice.

In the above case with @vegansaver, POPLA have said:

The appellant has admitted that they were the keeper of the vehicle who can also be assumed to be the owner for the purpose of penalty charges. 

APCOA Using Railway Byelaw for claims

M states that APCOA are attempting to claim payment under railway byelaws. M states that he rejects this and puts to them strictly to prove on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay APCOA? M also refers to Freedom of Information Act Request – F0013227 whereby the Department for the Secretary of State for Transport has categorically stated that no confirmation or change in laws since the Railways Act 1993 came into force, which empower any person or body other than the courts to impose a penalty for breach of Byelaws 14(1), (2) or (3) made under Section 219 of the Transport Act 2000 (as amended) and made operational on 7 July 2005. Therefore, any breach of byelaws is a criminal offence, not a breach of any contract APCOA may say the driver entered in to. If the driver is found to have breached byelaws 14 (1-3), the resulting penalty is paid to the government, not to APCOA or the railway. Further, byelaw offences are decided by the court, not by APCOA – the parking company or railway can only allege the breach.

M advises that APCOA Parking are not entitled to claim the charge is liable to them. However, as per the Contract for Parking Enforcement & Landowner Authority, APCOA have the authority to pursue any unpaid parking charges on behalf of Southeastern Railway. As per the Terms and Conditions ‘APCOA Parking (UK) Limited (APCOA) is authorised to operate and manage this private car park’. Certain parking terms and conditions apply when you park in the car park. These are set out within the ‘Parking Conditions’ which can also be viewed in full at www.apcoa.co.uk. ‘When you park or wait or otherwise stop with your vehicle within this car park you agree to comply with the Parking Conditions.’ Furthermore, the Contract for Parking Enforcement & Landowner Authority confirms that in accordance with sections 7.1 to 7.4 of the British Parking Association Code of Practice, SE Trains Limited have given APCOA Parking UK Ltd authority to carry out parking enforcement on the relevant property. This agreement extends authority to carry out parking enforcement for breaches of the advertised terms and conditions, and pursuit of unpaid parking charges.

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

M references the Protection of Freedoms Act (POFA) 2012 within the attached documentation and explains that APCOA Parking (UK) Limited does not have lawful authority to pursue any Penalty Notice from himself. M further explains that the NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. M further explains that as this operator has evidently failed to serve an NTK, not only have they chosen to flout the strict requirements set out in POFA 2012, but they have consequently failed to meet the second condition for keeper liability. M believes that he cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

As M appealed the Penalty Notice within 28 days of it being issued, it was not necessary to issue a Notice to Keeper. As previously advised, the Penalty Notice was issued under the Railway Byelaws. APCOA do not issue under the Protection of Freedoms Act 2012 and so the above mentioned by M is not relevant to this case. As this Penalty Notice was issued on Private Land under Section 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’. As per the Landowner Agreement, APCOA are authorised to issue Penalty Notices to vehicles parked in breach of the Terms and Conditions, under the Railway Byelaws. Furthermore, this agreement extends authority to carry out parking enforcement for breaches of the advertised terms and conditions, and pursuit of unpaid parking charges.

Appellant not being the individual liable

M further states that APCOA has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. M further states that 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. Any person(s), with the consent of the registered keeper or day-to-day hirer/lessee keeper, may drive a vehicle as long as the driver is insured. Please see the attached documentation for further explanation provided by M.

Although M has not named the driver on the date in 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’. This information was also detailed on the Terms and Conditions boards located within the Car Park; ‘if no details are provided, we will continue to pursue payment of the Penalty Notice against the registered keeper’. M decided to appeal this Penalty Notice with APCOA and again to POPLA as the registered keeper of the vehicle.

Is it worth re-iterating that POPLA cannot assume that the keeper is the owner? How can they come to this conclusion? (I did appeal as per the blue template originally before a NTK was issued, but did not state driver or owner)

They seem to labour the point heavily given the above extracts from their 36 page evidence pack!

Any comments greatly appreciated as ever, however I expect this case is a forgone conclusion. 

Umkomaas

Is it worth re-iterating that POPLA cannot assume that the keeper is the owner? How can they come to this conclusion? (I did appeal as per the blue template originally before a NTK was issued, but did not state driver or owner)

I'd concentrate on driving that point home.  But, whatever the POPLA outcome, you do not pay APCOA. They are litigiously totally benign, and in any case they cannot prosecute a byelaws case as it can only be done via the Magistrates Court by the Train Operating Company, with any penalty imposed by the Court going to the Exchequer, not the TOC and absolutely not ever to APCOA!

Once 6 months (for a byelaws case) have elapsed, that's it, finito!

Fruitcake

Just be aware that you may be too late to rebut the operator's case as you only get six days, not seven to rebut because day one is swallowed up by the issue date.

fuziduck

Thanks Fruitcake, that is a ridiculous way of using the 7 day timeline, especially as I have been away and unable to get to a computer to read their 36 page case for a week! 
I wish I had an alternative to parking in a ridiculous APCOA station car park and paying them thousands a year in parking costs which helps pay their ridiculous appeals team who subsequently try and bite the hand that feeds them.

Fruitcake

The money you pay to park doesn't (normally) go to APCOA. They (normally) only make money from people paying PCNs.

Most PPCs offer their services to the landowners or landowners' agents for free, but make their millions from the money they rake in from PCNs.

Old_Slobberchops

Umkomaas said:

Is it worth re-iterating that POPLA cannot assume that the keeper is the owner? How can they come to this conclusion? (I did appeal as per the blue template originally before a NTK was issued, but did not state driver or owner)

I'd concentrate on driving that point home.  But, whatever the POPLA outcome, you do not pay APCOA. They are litigiously totally benign, and in any case they cannot prosecute a byelaws case as it can only be done via the Magistrates Court by the Train Operating Company, with any penalty imposed by the Court going to the Exchequer, not the TOC and absolutely not ever to APCOA!

Once 6 months (for a byelaws case) have elapsed, that's it, finito!

I;d agree. Drive home the point that the owner cannot be assumed to be the keeper, There is no such assumption in law and the operator appears to be passing off the BPA Code of Practice as if it were statutory law, which it is not. Burden of proof rests with the accusser and, as its a criminal matter that level of proof is "beyond reasonable doubt". Then give examples such as Motobility vehicles the owner is Motobility but the registered keeper is the individual who is disabled; vehicles purchased on hire purpose the owner is the finance company not the keeper. In reality, this is about running down the 6 month clock when it becomes statute barred and they can take a hike.

Coupon-mad

Maybe we should be advising future victims to transfer liability to the driver. APCOA will let them, then the driver can go to POPLA saying (in POPLA's own template words):

As this Penalty Notice was issued on Railway Land and operated under the Railway Byelaws, APCOA cannot transfer liability to the driver of the vehicle.

Castle

Coupon-mad said:

Maybe we should be advising future victims to transfer liability to the driver. APCOA will let them, then the driver can go to POPLA saying (in POPLA's own template words):

As this Penalty Notice was issued on Railway Land and operated under the Railway Byelaws, APCOA cannot transfer liability to the driver of the vehicle.

The problem is that the driver could then be prosecuted by the T.O.C.

Coupon-mad

But so could the owner.

And if the driver wins at POPLA then the penalty MUST be cancelled so can't be prosecuted over...

bergkamp

Coupon-mad said:

Maybe we should be advising future victims to transfer liability to the driver. APCOA will let them, then the driver can go to POPLA saying (in POPLA's own template words):

As this Penalty Notice was issued on Railway Land and operated under the Railway Byelaws, APCOA cannot transfer liability to the driver of the vehicle.

Just returned from holiday, and as registered keeper I have received an Apcoa Byelaw 14 Penalty Notice regarding a train station car park...

I shall start a new thread when I have spoken to the driver.

fuziduck

Update from POPLA

Decision
Successful

Assessor summary of operator case
The operator issued the penalty charge as the driver failed to purchase and/or display a valid ticket or permit

Assessor summary of your case
The appellant has provided a document detailing their appeal. They dispute that the signage at the site is adequate. They explain that the operator has not complied with the requirements of The Protection of Freedom Act (POFA) 2012 and the land is not relevant land. They believes that this means that the appellant cannot be held liable for the charge. The appellant repeats this point within their comments. The appellant questions the operator’s use of Railway Byelaws for claims. They dispute that the operator has a valid contract for the management of the site.

Assessor supporting rational for decision
Having reviewed this case, I can see that a penalty has been issued for a breach of the Railway Byelaws. The byelaws make the owner of a vehicle responsible for the charge, who the operator can assume is the registered keeper. I have seen no evidence that would lead me to conclude that the appellant is not the owner, and I am therefore going to be considering their responsibility as the vehicle owner under the Railway Byelaws. As the operator is not looking to transfer liability of the penalty charge it does not consider the provisions of PoFA 2012. The operator issued the penalty charge as the driver failed to purchase and/or display a valid ticket or permit. They dispute that the signage at the site is adequate. Section 19 of the British Parking Association code of practice sets out the requirements for signage. Section 19.3 explains that the operator must place clear, easy to read signage throughout the site Section 19.4 also requires the amount of the penalty to be adequately displayed. In this case the operator has provided a site map and photographs of the signage. This evidence shows that there is a limited amount of signage throughout the site and I am not satisfied that it is adequate to bring the terms and conditions to the attention of the driver. As I am allowing the appeal on this basis I do not need to consider any other grounds of appeal.

It is interesting that they have chosen to state that they assume the registered keeper is the owner of the vehicle without evidence to confirm or deny this. (Guilty until proven innocent springs to mind?)

Surprised but pleased that my appeal has been accepted based upon inadequate signage because it is woefully inadequate at the station in question.