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Popla Appeal Sense Check
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If you were not the driver, state that in the comments and explain that the family was dropping off your partner, there were more than two people in the car and in fact the driver was (son/daughter/grandma...whatever!).
Do not name the driver, but state what relationship the driver is to you, which is how you know it was not you driving. At the drop-off bay, you got out and helped your partner with their suitcases and over to the lift, which is what you meant in the appeal by 'I dropped off' but as a matter of fact, the appellant was not the driver and did NOT state this in any appeal.
APCOA have admitted 'The PCN was not issued under PoFA, therefore we will not be making any claims under the Act.' The PCN was also not issued under any byelaws, it was a non-POFA Parking charge notice, therefore the registered keeper cannot be held liable. The appellant keeper is not liable.
APCOA's template response effectively says 'look, there were signs up'. They have missed the point that these signs DO NOT even mention the supposed PCN of £80! It is not enough to attach pictures of signs that mention only the £5 drop off tariff. That is not the same as showing by evidence that the driver agreed to pay £80. These signs are so inadequate that the driver cannot be bound to have known that there was any contract involving paying £80 for breach. Such a term must be conspicuous, as was held in ParkingEye v Beavis, whereas in this case the £80 parking charge was not even there on 19 out of 20 signs in the operator's pack. £5 was on those signs but that is not the same thing as agreeing to pay £80.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Just because the idiots at APCOA send in a template document stating that signage complies with this and that does not mean that it does it's just the usual made up blanket of rubbish that all PPC's use to throw POPLA off.In reality the BPA only office audit examples of signs from master images, I would ask for BPA or better still impartial audits of the actual site for conformance.They state that:"We must also advise that the lawful basis APCOA has for processing data is legitimate interest on behalf of our client Heathrow Airport Ltd to pursue an unpaid parking charge".But it is not a parking charge, it is a drive through charge we have seen on here where a PPC tried to impose a parking charge for driving through a buses only area at a shopping centre, that was thrown out by POPLA as it was not parking."A site plan and photographic evidence of the signage in place in the car park is included in this pack. The terms and conditions of this car park are: “£5.00 per visit – it advises the motorist to ‘Pay online or by phone, and the website address is also provided: heathrow.com/drop-off. Included in the signage is a contact number 0330 008 5600’ Signage further advises that ’Payment must be made by Midnight on the day after your visit”.How can a driver possibly read all that driving around a confusing airport, I would ask the assessor how long all the signs take to read in the comfort of an office?"The signage also states a Parking Charge of £80 will be issued for failure to comply with the terms and conditions of the site"I believe that is only on one sign again almost impossible to see or take in.
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Afternoon, Thanks both for your responses. I have drafted the below response to the appeal following your responses.
If there is anything you feel should be added/reworded then let me know.
Appreciate your helpAPCOA has stated “Whilst the appellant has quoted POFA, the appellant admitted being the driver in their initial appeal to APCOA.” If you review my original appeal to APCOA, I stated that “ I dropped my partner to Heathrow”. I did indeed drop off my partner that day to the airport, however I was a passenger in the vehicle. My brother had been driving that day and remained in the car to allow me to assist my partner, dropping her bags to the terminal for her departure. The expression “dropping off” used relates to the act upon me providing assistance to my partner and her bags. It is a fact that the appellant was not the driver and this was not stated in the original appeal.
APCOA have admitted 'The PCN was not issued under PoFA, therefore we will not be making any claims under the Act.' The PCN was also not issued under any byelaws, it was a non-POFA Parking charge notice, therefore the registered keeper cannot be held liable. The appellant keeper is not liable.
APCOA has provided further evidence of the apparent signage that is placed around the Heathrow drop off area. The vast majority of these signs clearly state a £5 drop off fee applies yet lacks any evidence to show that a driver agreed to pay £80. These signs are so inadequate that the driver cannot be bound to have known that there was any contract involving paying £80 for breach. Such a term must be conspicuous, as was held in ParkingEye v Beavis, whereas in this case the £80 parking charge was not even there on 19 out of 20 signs in the operator's pack. £5 was on those signs but that is not the same thing as agreeing to pay £80. How is a driver (my brother) who entered and exited the drive through drop off in under 5 minutes, who did not leave the vehicle be expected undertake a deep analysis of the small print held within these signs whilst undertaking a key role of safely driving in a difficult environment. Furthermore, If only 1 out of 20 signs actually state a £80 Parking Charge Notice applies then this is deliberate ploy to deceive motorists into paying an unreasonable charge that is not clearly sign posted. I strongly urge BPA or an impartial service be appointed to conduct audits of the site to allow true transparency in regards to the validity of the evidence provided and to provide a review how well these can be interpreted by a driver who is conducting a safety critical task.
The signs also fail to provide the clear instruction to a driver (my brother) or any passenger (myself) that that the system to pay the £5 is via a unique online system. This is in contrast to what you would typical expect to to face using this service, aka a mechanical barrier with booth to pay upon exiting (such as Luton Airport). This ultimately is a deliberate trap for APCOA to issue £80 Parking Charge Notice’s to innocent drivers rather than accept the £5 stated charge. This Is further proved by the fact that APCOA has provided the evidence that I had paid (as the registered keeper not driver) for the £5 fee at a later date when it had become apparent that an online payment system had been in place. APCOA’s motive is clear they are striving to demand £80 charging notices rather than accept the £5 fee paid.
APCOA states “We must also advise that the lawful basis APCOA has for processing data is legitimate interest on behalf of our client Heathrow Airport Ltd to pursue an unpaid parking charge.” This however is not a parking charge as no parking had taken place. Entry and exit from this area had been carried out in under 5 minutes. A drive through of this area had been carried out which POPLA has “thrown out” previous cases due to recognising the fact that no parking had taken place.
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It's too long. You only have 2000 characters to respond, and only six days to do so.
I married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks2 -
Evening, Thanks for response. Just checked and It states I have 10000 characters to respond so I should be good. Deadline to submit is Friday. Thanks1
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darkestmoment said:Evening, Thanks for response. Just checked and It states I have 10000 characters to respond so I should be good. Deadline to submit is Friday. Thanks
I suggest a change here to make it read better:
"It is a fact that the appellant was not the driver and this was not stated in the original appeal."
should be
It is a fact that the appellant was not the driver and it is apparent that the operator has made a wrong assumption about this. There is no presumption in law relating to private land that the keeper and driver were the same person and in my case, I was not driving. i cannot be held liable by a non-PoFA NTK.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD3 -
darkestmoment said:Evening, Thanks for response. Just checked and It states I have 10000 characters to respond so I should be good. Deadline to submit is Friday. ThanksI married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks1
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Coupon-mad said:darkestmoment said:Evening, Thanks for response. Just checked and It states I have 10000 characters to respond so I should be good. Deadline to submit is Friday. Thanks
I suggest a change here to make it read better:
"It is a fact that the appellant was not the driver and this was not stated in the original appeal."
should be
It is a fact that the appellant was not the driver and it is apparent that the operator has made a wrong assumption about this. There is no presumption in law relating to private land that the keeper and driver were the same person and in my case, I was not driving. i cannot be held liable by a non-PoFA NTK.
Think it was about 3600 characters with 6400 left if I had wanted it to go for more!
Shall update with the outcome2 -
Evening,Updates to the above.
First POPLA Appeal.... Unsuccessful
It appears that they could not recognise my response to the incorrect statement APCOA had provided that I had confirmed I was the driver of the vehicle by using the phrased "dropped my partner off". Before I submitted the 2nd appeal, I added in detail clearly stating I wasn't the driver and the fact my brother had been driving, whilst me present assisting my partner dropping off/returning to help as a passenger. The 2nd appeal's 21 days have now lapsed and this has been deemed as sucesfull. So 1 loss, 1 win. What would be the advice in regards to the first outstanding PCN now?The appellant has raised multiple grounds of appeal. I will summarise these below. 1. They state APCOA are not using Protection of Freedoms Act 2012 (PoFA). They also state there is no compliance with the requirements and timetable set out in Schedule 4 of PoFA. 2. The appellant raises the Airport Act 1986. 3. They state the amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. 4. The appellant says it is not relevant land under PoFA 2012. 5. They say the operator has not shown the individual pursing is in fact the driver, therefore, cannot hold them liable as the keeper. 6. The appellant says there is misleading and unclear signage and cannot be read safely from a moving vehicle. They also state that whilst they do mention the £5 charge, none of them quantify the £80 therefore, no contract to pay a parking charge of £80 was agreed. Within the motorist comments, the appellant reiterates the £80 is not mentioned. 7. They state there is no landowner contract, nor legal standing to form contracts or charge drivers. 8. The appellant says there is no cause for requesting details from the DVLA therefore, does not comply with section 20.14 of the BPA Code of Practice. 9. They say the photo evidence appears to be doctored 10. The appellant says there is a lack of good faith and intention. 11. The appellant states from the operator’s rejection, it appears APCOA are attempting to claim the charge is liable under airport byelaws. The appellant rejects this and puts the operator on proof which byelaw they claim is broken. They also say Airport byelaws do not apply to any road which the public has access and are subject to road traffic enactments. 12. The appellant says the operator is in breach of section 13.1 of the British Parking Association (BPA) Code of Practice.in this case, the operator has provided both PDF document versions and photographic evidence of the signage displayed on site. From the evidence provided by the operator, the terms and conditions clearly state: “£5.00 per visit… A parking charge notice (PCN) will be issued for failure to comply with the terms and condition …Payment must be made by Midnight on the day after your visit” In this case, the operator has issued the PCN for: “01- Use of drop off zone without making a valid payment” This site is monitored by Automatic Number Plate Recognition (ANPR) cameras and shows the appellant’s vehicle entering the site at 06:07 and exited at 06:12, a total of 5 minutes. It appears a contract between the driver and the operator was formed, and the operator’s case file suggests the contract has been breached. I will consider the appellant’s grounds of appeal to determine if they dispute the validity of the PCN. Firstly, I note that the appellant has raised multiple appeals with POPLA. I must advise that POPLA assess all appeals on an impartial case by case basis and as such each PCN must be appealed by the motorist separately. In this instance I am only assessing the appeal for POPLA code:...... xwhich was issued to PCN number. The appellant states APCOA are not using Protection of Freedoms Act 2012 (PoFA). They also state there is no compliance with the requirements and timetable set out in Schedule 4 of PoFA. They say the operator has not shown the individual pursing is in fact the driver, therefore, cannot hold them liable as the keeper. The appellant says it is not relevant land under PoFA 2012. The appellant has appealed as the driver as they state that “I dropped off my partner.”, “I returned to pick up my partner…”, and “As a driver who did not leave the car”, and therefore keeper liability does not need to be established and the Protection of Freedoms Act 2012 does not apply. The appellant has not mentioned to the operator that their brother was driving therefore, I am satisfied this is sufficient to decide if the appellant was driving. The appellant raises the Airport Act 1986. The appellant states from the operator’s rejection, it appears APCOA are attempting to claim the charge is liable under airport byelaws. The appellant rejects this and puts the operator on proof which byelaw they claim is broken. They also say Airport byelaws do not apply to any road which the public has access and are subject to road traffic enactments. I acknowledge the comments made by the appellant however, the operator has chosen to issue the notice as a Parking Charge Notice, issued under contract law therefore Byelaws and the Airport Act have no relevance in this case.
The appellant states the amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The fairness of parking charges was considered more broadly by the Supreme Court in the case of ParkingEye v Beavis [2015] UKSC 67. To conclude on whether the charge is fair, I must first look at what the Court said. The Court recognised that parking charges have all the characteristics of a penalty, but nevertheless were enforceable because there were legitimate interests in the charging of overstaying motorists: “In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss because of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss… deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract.” (Paragraph 99) The Court did however make it clear that the parking charge must be proportionate: “None of this means that ParkingEye could charge overstayers whatever it liked. It could not charge a sum which would be out of all proportion to its interest or that of the landowner for whom it is providing the service.” (Paragraph 100) It concluded that a charge in the region of £85 was proportionate, and it attached importance to the fact that the charge was prominently displayed in large lettering on the signage. The Court made it clear that the same considerations that means it was not a penalty also mean it is not unfair: “In our opinion, the same considerations which show that the £85 charge is not a penalty, demonstrate that it is not unfair for the purpose of the Regulations.” (Paragraph 104) With that in mind, to conclude whether it is unfair according to the Unfair Terms in Consumer Contract Regulations, I have to take into account the charge amount in the appellant’s case, as well as the signage. On this, I conclude the charge is appropriately prominent and in the region of £85 and is therefore not unfair.
The appellant says there is misleading and unclear signage and cannot be read safely from a moving vehicle. They also state that whilst they do mention the £5 charge, none of them quantify the £80 therefore, no contract to pay a parking charge of £80 was agreed. Within the motorist comments, the appellant reiterates the £80 is not mentioned. The British Parking Association (BPA) sets out standards for signage for its members when managing a car park. The BPA Code of Practice, Section 19.3 states: “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle” Furthermore, it states that they must, “Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand” and “In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are”. The signs do not need to be placed directly in the position where parked, they simply must be placed throughout the site so that drivers are given the chance to read them. Within the operator’s case file, it has also provided images of the signage on site. From these images, I am satisfied it does inform motorists “a Parking Charge Notice (PCN) will be issued for failure to pay or comply with the terms and conditions … PCN charges £80… PCN charges paid within 14 days £40” Having considered the signage, I am satisfied that it is sufficient to inform drivers that they are entering private land and need to be aware of terms and conditions once they are within the car park itself.
The appellant says there is no landowner contract, nor legal standing to form contracts or charge drivers. Section 7.1 of the British Parking Association’s Code of Practice outlines to operators, “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”. Additionally, Section 23.16B of the BPA Code of Practice advises that POPLA will accept witness statements in place of full landowner agreement contracts. The evidence provided in relation to this appeal meets the criteria POPLA requires, and therefore I am satisfied that the operator has sufficient authority at the site on the date of the parking event. From the information provided from the operator I am satisfied therefore, that the operator had sufficient authority on the date of the contravention. Furthermore, if authority had since been removed, it is likely that the landowner would remove the signage at the same time. Not many landowners would look on quietly while someone operates on their land without their permission. The appellant says there is no cause for requesting details from the DVLA therefore, does not comply with section 20.14 of the BPA Code of Practice. Firstly, I must point out that section 20.14 of the BPA Code of Practice is from the old version. As such, I will be reviewing section 21.14 of the Code of Practice. Section 21.14 states “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.” When a breach of terms and conditions have occurred, the parking operator issues the notice to keeper (NTK) and the “reasonable cause” would be the reason the PCN was issued, so in this case “01- Use of drop off zone without making a valid payment”
The appellant states the photo evidence appears to be doctored. Whilst I appreciate the comments made by the appellant, they have not explained why they think this is the case. I have viewed the images provided by the operator as I am satisfied these have been taken from cameras on site and I have no reason to believe these have been altered.
The appellant says there is a lack of good faith and intention. As the appellant has not explained what they mean by this, I am not able to take this into consideration. The appellant says the operator is in breach of section 13.1 of the British Parking Association (BPA) Code of Practice. Section 13.1 of the BPA Code of Practice states motorists should be given a minimum of 5 minutes to consider the Terms and Conditions before entering into the ‘parking contract’ and if the driver decides not to park but chooses to leave the car park, the operator must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. In this case, the appellant says they dropped their wife off at the airport therefore, they gained utility of the site therefore, they agreed to the terms and therefore, the consideration period does not apply. I note that the appellant has raised additional grounds for appeal in their comments despite not raising this when submitting the initial appeal.
Please note that POPLA does not accept new grounds of appeal at the comment stage. Instead, the comment stage is to be used to expand on the initial grounds of appeal after seeing the evidence pack from the operator. As these were not raised in the initial appeal, I cannot consider these this as part of my decision. In this case, the driver entered the car park in full acceptance of the terms of parking clearly displayed. Terms and conditions are offered; and by remaining in the car park, these are accepted. Ultimately, it is the driver’s responsibility prior to leaving their vehicle in the car park, to seek out the terms of parking, ensure that they understand them and to ensure that the vehicle is parked in accordance with the terms and conditions of that site. Therefore, from the evidence provided by both parties, I conclude that the operator issued the PCN correctly and as such, the appeal is refused.0 -
“As a driver who did not leave the car”,That was your problem! Those words. Because you then said in your comments that you did leave the car.
Just ignore APCOA. Perfectly safe.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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