APCOA railway parking PCN - won

Ferrex

I'm posting this in case it helps anyone else who has received a PCN for parking in a railway station. By not naming the driver and following a few guides on here we won the case (APCOA pulled out when we submitted the appeal to Popla).


Back in February we parked at the local railway station and thought we had paid with the APCOA connect app, however payment wasn't taken due to an issue with authorisation with the bank. We thought APCOA would see it was an issue with their app and completed the appeal with them as below. 

On-line challenge for GT00******On the grounds of:

Other

Further explanation :

All parking machines have been removed so payment was made by a passenger using the APCOA app, the app showed the session had begun but there appears to have been an issue with Mirada Connect as payment was declined by the issuing bank as "you didn't approve this payment". The app did not show any issue with payment. A friend who is a magistrate informed me a court would throw this out as APCOA can't reasonably expect anyone would log into online banking to check the payment went through when the APCOA app showed a valid session. Further to this there are a number of issues - 1) Railway land is not relevant land for the purposes of the Protection of Freedoms Act 2021, therefore there is no keeper liability. 2) POPLA notes the timescales of PoFA2012 as a period of 14 days and this notice was sent outside that timeframe. 3) Non compliance with PoFA, Even if the carpark was considered "relevant land" under PoFA, APCOA has failed to comply with the requirements of Schedule 4 of that act, namely, by issuing the notice too late for keeper liability to apply. 4) As APCOA does not have a proprietary interest in the land, I require they produce an unredacted copy of the contract with the landowner.

Yours faithfully


However APCOA refused this appeal and replied as below. 

Thank you for your appeal received 09 April 2023 against the above Penalty Charge Notice. Having carefully considered the evidence provided by you, we must advise your appeal has been unsuccessful on this occasion.

At the time the ANPR cameras observed the vehicle they noted that it had used the car park without a valid payment, therefore it was parked in breach of the terms and conditions of the car park and a Penalty Notice was issued.

We appreciate your comments, however, it is the motorist’s responsibility to ensure that they read the terms and conditions on the signage in the car park and that they have a valid payment for the entire time that they use the car park.

In response to your comments, we can confirm that this Penalty Notice was not issued under the conditions laid out in the Protection of Freedoms Act (POFA) 2012.

Please note, this is a Penalty Notice issued on Railway land as a breach of the terms and conditions of Penalty has occurred, and we have confirmed that 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.

For further clarification, the owner, in relation to a vehicle, means the person by whom the vehicle is kept, which in the case of a vehicle registered under the Vehicle Excise and Registration Act 1994 (c. 22) is presumed to be the person in whose name the vehicle is registered. If the Penalty Notice remains unpaid, APCOA Penalty is entitled to pursue you as the keeper through the Magistrates Court by way of a private criminal prosecution for payment of the Penalty Notice.

In your appeal you have also stated that you want to see proof that APCOA Parking has the required authority to operate and issue Penalty Notices at this site.

The agreement that APCOA Parking has in place with the landowner is a commercially sensitive document and therefore will not be provided as evidence in this appeal response. However, if the matter proceeds for legal action all relevant documentation will be provided to the court.

As your vehicle was parked in contravention of the terms and conditions of the site we are satisfied that the notice was correctly issued in accordance with the BPA code of practice, and therefore not able to waiver the charge on this occasion.

Therefore you now have a number of options:

Pay the Penalty Charge Notice at the discounted price of £60 within 14 days. Please note that after this time the Penalty Charge Notice will increase to £100.
How to pay

Online at 
Or send a Cheque or Postal Order made payable to APCOA Penalty (UK) Ltd to: APCOA Penalty, PO BOX 222, LOWTON WAY, HELLABY, SHEFFIELD S98 1NX.

You have now reached the end of our internal appeals procedure. You now have the option to make an appeal to POPLA - The Independant Appeals Service. You can do this within 28 days of this letter by completing the online appeal form at popla.co.uk quoting the verification reference number *************** Please be advised that if you opt for independent arbitration of your case, the Penalty Charge Notice will be considered at the full amount of £100. If you require a hard copy of the POPLA form please contact our customer service centre on 0345 301 1151 where one of our customer service agents will be happy to assist you.

By law we are also required to inform you that Ombudsman Services provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.

If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you.

Yours Faithfully

Appeals Department APCOA Penalty (UK) Ltd 


Continued in post below.

Ferrex

We were a little disheartened at the response from APCOA as they hadn't even addressed the issue with their app that caused the PCN and gave the impression we wouldn’t win using the non relevant land/keeper liability argument. We waited 27 days to file an appeal to Popla, aware that the case would time out after six months. The Popla appeal was long and used several sections borrowed from this forum from other wins at Popla. 

 

Summary of appeal:

1. APCOA connect app was directly responsible for payment not going through.

2 3 4 5

1. APPCOA Connect app failure to show payment required additional authorisation.
Firstly I am disappointed APCOA didn't bother to respond to the issues surrounding payment with their app that Iraised in my internal appeal to them. APCOA claim the vehicle for which I am the registered keeper used Bedford rail station car park without payment and parked in breach of the terms and conditions of the car park.

APCOA state “

. Railway Land Is Not Relevant Land

. No Keeper Liability can apply

. Appellant not being the individual liable

. Lack of standing / authority from landowner

At the time the ANPR cameras observed the vehicle they noted that it had used the car park without a

valid payment, therefore it was parked in breach of the terms and conditions of the car park and a Penalty Notice was

issued. “

This is not the case. Payment was made using the APCOA parking app by one of the group

traveling in the vehicle, the app showed a current session, the person using the app had done so

before without issue and considered this to show payment had been made. However a week or so

later on checking their bank account they found an issue between Mirrada Connect limited and the

bank had caused payment to fail as “not authorised”. At no point did APCOA's app suggest an issue

or that the payment would require extra authorisation. I have read through the terms and conditions

of using the APCOA app and it does not state the user is responsible for errors with the software.

APCOA state in their terms and conditions section 5. “It is your responsibility to ensure your

payment was successful and conformed. This will be communicated, depending on circumstances,

by SMS or during the IVR call. Confirmation is deemed at the point at which you have been told

when parking will expire”. In my opinion this was confirmed by the app showing a valid session,

the app does not automatically send an SMS and has never done so when used previously. It can be

argued that this is an unfair contract under the unfair contracts act 1977 if APCOA are stating that a

valid session is not confirmation that payment was successful and I'd be happy to argue this point in

a magistrates court if APCOA would like to carry out their threat of court action.

The payment failed because of an issue with APCOA's chosen payment service (Mirrada Connect

Limited) and the failure for APCOA software (the app) to deal with cases where authorisation is

required for payment. The person using the app did luckily take a screenshot of the session which

will be presented as evidence in a magistrate court along with a screenshot of the bank error

message which had already been submitted to APCOA

APCOA state “ In response to your comments, we can confirm that this Penalty Notice was not

issued under the conditions laid out in the Protection of Freedoms Act (POFA) 2012.

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

of Penalty has occurred, and we have confirmed that you are the registered keeper of the vehicle in

question and therefore you are liable for this Notice.”

2. No keeper liability

For the avoidance of doubt, the driver’s identity has not been provided and this appeal

remains purely from the registered keeper.

The car park at Bedford Station is railway land, and is therefore subject to Railway Bye-laws. As

the Protections of Freedom (PoFA) 2012 Act does not apply on railway land as it is considered ‘not

relevant land’, and there can be no transfer of liability from the driver at the time to the keeper.

3.APCOA have already confirmed in writing that PoFA does not apply, only railway bye- laws.

APCOA are not entitled to claim under Railway Bye-laws, nor have they followed correct

procedures if they were entitled to do so.

By claiming the charge is liable to them, it appears that APCOA are attempting to claim this under

railway bye-laws. I reject this and put to them strictly to prove on which bye-law 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 Bye-laws 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 bye-laws is a criminal offence, not a breach of any contract APCOA may

say the motorist entered in to. If the motorist 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.

Furthermore, POPLA guidance issued in 2018 with regard to penalty notices issued under Railway Bye-laws, states several expectations of a penalty notice that have not been followed in this instance. For example:

- A Penalty Notice (PN) should say it is a penalty notice
- A PN should confirm how the bye-laws were brought to the motorist’s attention - A PN should confirm the law under which it has been issued
- A PN should not use the words ‘parking charge notice’
2-A compliant Notice to Keeper was never served - no Keeper Liability can apply.

The PCN states that APCOA apply to the DVLA for keeper details, thus implying APCOA adheres to PoFA keeper liability. However, even if the land in question was considered relevant land, the parking charge notice does not comply with the strict requirements of Schedule 4 of PoFA 2012 to be followed in order for a parking operator to be able to claim unpaid parking charges from a vehicle’s keeper.

As a result, APCOA 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.

continued below.

Ferrex

3-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.

Not being the owner of the vehicle, under the Railway bye-laws 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.
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 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."

4-No evidence of Landowner Authority has been provided

As APCOA does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what APCOA is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

The Transport Act byelaws may authorise APCOA to issue a parking penalty but they do not provide the mechanism for recovery of those charges, as such they offer a resolution to dispose of the allegation which I am free to accept or decline. As I have declined the offer the only way forward for APCOA is to take this to magistrates court which I invite them to do should this appeal be rejected. 

continued below.

Ferrex

A few weeks went by and we didn't hear anything. Then Popla sent an email saying the operator had withdrawn the appeal. 

The operator has contacted us and told us that they have withdrawn your appeal.

If you have already paid your parking charge, this is the reason your appeal will have been withdrawn. Unfortunately, you cannot pay your parking charge and appeal, which means that POPLA’s involvement in your appeal has ended. You will not be able to request a refund of the amount paid in order to resubmit your appeal to us.

If you have not paid your parking charge, the operator has reviewed your appeal and chosen to cancel the parking charge. As the operator has withdrawn your appeal, POPLA’s involvement has now ended and you do not need to take any further action.

Kind regards

POPLA Team

Coupon-mad

That's great!  Thanks for posting it.

We've seen cases before if the receiving bank rejecting payments behind drivers' back.

How did you find out this information trail to know that Mirrada Connect had rejected the payment? Did you phone your own bank? Would be useful to know, so we can advise other posters in future.

KeithP

Well done.

That's now three threads we have about this one parking incident.

For completeness, here are the other two...
Railway station parking fine Apcoa
Keeper liability under railway bylaws

Ferrex

Coupon-mad said:

That's great!  Thanks for posting it.

We've seen cases before if the receiving bank rejecting payments behind drivers' back.

How did you find out this information trail to know that Mirrada Connect had rejected the payment? Did you phone your own bank? Would be useful to know, so we can advise other posters in future.

Mirrada Connect appeared on my online banking statement, with a note saying I hadn't authorised the payment. I am not sure if all banks show this information. 

Boat_to_Bolivia

KeithP said:

Well done.

That's now three threads we have about this one parking incident.

For completeness, here are the other two...
Railway station parking fine Apcoa
Keeper liability under railway bylaws

Well researched Chief Inspector @KeithP ... 

I guess 3rd time lucky.

Congratulations OP. (But why 3 threads?)