APCOA Popla ANPR Fine Salisbury Train Station Car Park

lewthewho

Hi All, 

I used this forum successfully earlier in the year for a Heathrow Apcoa appeal when using the blue template. Unfortunately this time i am going to POPLA!

So I received a PCN from APCOA for Salisbury Station Car Park. I normally park there weekly and use Ringgo to pay after leaving (sometimes multi-day stays). For some unknown reason when I left the car park my "session" on the app never showed up and I was never able to pay for the day I parked there. I received a letter, standard PCN with the photo of my car entering/leaving the car park. I asked Ringgo and they did an "audit" but showed no session for my vehicle on that day, but also mentioned they can't get involved. 

I used the standard Blue Post Newbies text but just received the appeal failure. (no driver mentioned). 

They have stated my appeal failed as ANPR cameras showed I entered/stayed and never paid. And (pasting from letter)

""Please note, this is a Penalty Notice issued on Railway land as a breach of the terms and conditions of parking has

occurred, you are the registered keeper of the vehicle in question and therefore you are liable for this Notice.

The Railways byelaws state:

In England and Wales

(i) 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.""


Original Fine (after 14 days) is 85 pounds, now on the unsuccessful appeal letter they are offering 50 pounds if I pay within the next 2 weeks... which sounds fishy to me! 

I haven't been able to find a similar POPLA appeal example (Ideally I'd like to mainly copy/paste).

Any advice?

Much appreciated. 

Le_Kirk

Penalty notices on railway land (subject to bye-laws) time out after six months; check other threads referring to bye-laws.

Umkomaas

Drag this out for 6 months. Send the POPLA appeal as late as possible (you get 32 days, despite your letter saying 28).  If you lose at POPLA, you still don't pay.  If you lose at POPLA, you'll likely get debt collector letters, ignore them. If APCOA come back themselves, just keep them busy by sending them questions to answer (2nd class mail) to count the clock down. 

APCOA have never pursued a private parking charge to court.

lewthewho

Would I likely win a POPLA appeal? 

Using Pofa // no driver identified // Ringgo issue ( they chose this transaction partner, how am I to blame if their technology doesnt work etc. 

KeithP

lewthewho said:

Would I likely win a POPLA appeal? 

No. You are just going through the motions.
As said above, just get this thing timed out after six months.

lewthewho

Also, will they tow my vehicle during this 6 months?? ha

B789

lewthewho said:

Also, will they tow my vehicle during this 6 months?? ha

For what reason would they tow your car? You have a "Penalty" Charge Notice issued under railway bylaws. Just do as advised above and delay any necessary responses to the last day in order to get this timed out after 6 months.

Please read the Newbie thread if you want to understand the process better.

Coupon-mad

lewthewho said:

Also, will they tow my vehicle during this 6 months?? ha

Nothing will happen.

lewthewho

Hi there, so i have waited to create a POPLA appeal.. but got my maths wrong and am about 33/34 days as of today (Notice March 10th). I can still register the appeal on POPLA website it looks like. I have had a look around previous posts etc and came across one which is similar. 

Its a pretty standard train station byelaw/non driver arguement with a few other supporting points others used.

I added point 5 below as I contacted Ringgo and they do not have any record of the vehicle being parked there that day despite have records for all other visited/paid stays for that vehicle at that car park (I can produce receipts/records of the historic stays/payment). Is it worth including ?

Am i just screwed because I am beyond the 28 days?

Dear Sirs

 

As the registered keeper, this is my appeal about a Parking Charge Notice issued by APCOA for an alleged breach of the company's terms and condition in the Salisbury railway station car park on January 26th 2023.
For the avoidance of doubt, the driver’s identity has not been provided and this appeal remains purely from the registered keeper.

Summary of appeal:
1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.
2. Railway Land Is Not ‘Relevant Land’.
3. APCOA Using Railway Bye law for claims.
4. Appellant not being the individual liable.
5. Payment Partner identified no registered stay
6. Lack of standing / authority from landowner.


1) A compliant Notice to Keeper was never served - no Keeper Liability can apply.
APCOA Parking (UK) Ltd has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if
(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;
*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

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. As this operator has evidently failed to serve a 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. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

2) Railway Land Is Not ‘Relevant Land’
Under Schedule 4 of PoFA 2012, section 1, it states that:
“(1) This schedule applies where –
(a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Following from this, in section 3, PoFA 2012 states that: “(1) In this schedule “relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”. And that: “(3) For the purposes of sub-paragraph (1) (c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question”.
Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable, as this Act does not apply on this land. I ask APCOA for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the rail authorities that this land is not already covered by byelaws. Railway land, being governed by Byelaws, is not relevant land and Keeper Liability under POFA does not apply, and therefore APCOA are unable to pursue the registered keeper in lieu of the driver’s details.
POPLA assessor Steve Macallan found in 6062356150 in September 2016 that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012. ‘As the site is not located on ‘relevant land’, the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal.’
Clearly, I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given. POPLA Assessor, if you think that looking at the Notice to Driver instead, and comparing that to the POFA is acceptable (as happened in a very wrong 'Gemini Parking' POPLA decision prior to Christmas that is in the public domain and needs addressing as a terrible POPLA error and woeful lack of POFA training) then you are not correct, must NOT take that step and must refer this case first, to your Lead Adjudicator, because POPLA is not entitled under any rule of law to make a finding against a registered keeper in a case without a Notice to Keeper. This will continue to be stated in appeals until all POPLA Assessors get this simple matter right.

3) APCOA Using Railway Bye law for claims
By claiming charge is liable to them, it appears that APCOA are attempting to claim this under railway byelaws. I reject this and put 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.!
I also refer 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.

4) Appellant not being the individual liable
APCOA has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103). 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, may drive a vehicle as long as the driver is insured.
Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be and as the Registered Keeper), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.
Not being the owner of the vehicle, under the Railway byelaws the registered keeper of the vehicle cannot assumed to be the owner anymore than they can assumed to be the driver.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if APCOA is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only 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.
The burden of proof rests with APCOA, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.
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 unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.!
This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:!
"I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal."

5) Payment Partner didn’t register any vehicle parked with the reference registration that day.
Ringgo Ltd Registration no-3151938

When contacted in reference to the mentioned charge Ringgo has no record of vehicle xxxx parking at Salisbury Station Car Park that day. They have record of many other registered and paid stays for other days at this car park with vehicle xxxxx.

6) Lack of standing / authority from landowner
Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. Section 7.1 states:
“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”.
Section 7.3 states: “The written authorisation must also set out:
a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined!
b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement!
d. who has the responsibility for putting up and maintaining signs!
e. the definition of the services provided by each party to the agreement.''

I do not believe that APCOA’s mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a TOC gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay APCOA (not that a keeper can be liable anyway on non-relevant land and APCOA cannot enforce byelaws themselves, only the Train Operating Company (TOC) or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court). APCOA have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that APCOA are entitled to pursue these charges in their own right.

I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for APCOA merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put APCOA to strict proof of compliance with all of the above requirements

B789

If it is day 33, you should still be able to post your appeal. If the site lets you, just do it. It doesn't matter too much if you lose the appeal. you just need to get this strung out as long as possible. I haven't read your appeal above so can't critique it but as I said, it doesn't matter for now if you are so late.

lewthewho

B789 said:

If it is day 33, you should still be able to post your appeal. If the site lets you, just do it. It doesn't matter too much if you lose the appeal. you just need to get this strung out as long as possible. I haven't read your appeal above so can't critique it but as I said, it doesn't matter for now if you are so late.

What do you think about my Parking/payment partner point? (its in additional to the slam dunk 1/2)