APCOA Station (ANPR) Penalty Notice - Surrey

ObserverOfLife

Evening folks,

I've struggled to find a POPLA Appeal specifically for penalty notice as the blue template is for PCN. However, I've amended it to show a mix of PCN and PN as well thrown in few points just to irk them. I'm aware that I am probably over-thinking this and making it more complicated than need be!

Would it be okay to share and have a quick overview/review? I am unsure whether few points are factually correct or can be interpreted that way.

Unfortunately, I can't share it here as it's too long (as suggested by the newbie thread!). Any advice on how to share an attachment? URL perhaps?

Cheers!

KeithP

ObserverOfLife said:

Unfortunately, I can't share it here as it's too long...

Spread it over several posts.

ObserverOfLife said:

Any advice on how to share an attachment?

Dropbox.

Umkomaas

Here's one 'banal' question for them:

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.

'Is this 'clarification' part of the byelaws pertaining to xxxx railway station, or is this something that APCOA have concocted to fit with their penalty charge?'

ObserverOfLife

Umkomaas said:

Here's one 'banal' question for them:

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.

'Is this 'clarification' part of the byelaws pertaining to xxxx railway station, or is this something that APCOA have concocted to fit with their penalty charge?'

Funnily enough, I had included one point stating that they are mis-representing the law as the legislation does not provide this definition. If it does, I can't find it or interpret it that way so I have challenged them to provide me with this official definition. 

I'll share the POPLA.appeal later. Cheers!

ObserverOfLife

Evening folks - As promised, below are a number of posts splitting up the POPLA appeal. I have redacted private information and to allow anybody else to use as template if needed.

Part 1:

Dear Adjudicator,

POPLA Ref ...................
APCOA Parking PCN no .......................

A notice to keeper was issued on XX July 2023 and received by me, the registered keeper of XXXXXX on XX July 2023 for an alleged offence of ‘Breach of Byelaw 14’ at XXXX station.

I am writing to you as the registered keeper and would be grateful if you would please consider my appeal on multiple grounds for the following reasons:

 

1) APCOA not using POFA 2012 and using Railway Byelaws for claims

2) Misleading and confusing use of the term ‘Penalty Notice’ and ‘Parking Charge Notice’

3) Change in ‘Alleged Breach’

4) Harassment and Excessive Level of Demand

5) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012

6) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)

7) The operator 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)

8) Lack of evidence around Signage and use of ANPR

9) No landowner contract nor legal standing to form contracts or charge drivers

10) Authenticity of photograph and use of technology

11) Mis-presentation of the law used

12) Insufficient provision of signal coverage or access to ensure payment technology is fit for use

 

1)     APCOA not using POFA 2012 and using Railway Byelaws for claims

From the original notice letter, it appears that APCOA are attempting to claim the charge is liable to them under railway byelaws. I reject this and put them strictly to proof on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay APCOA. As APCOA is not using Protection of Freedom Act 2012, a breach of railway byelaw is a criminal offence, this can not be imposed upon the keeper, only the individual (driver) that committed the alleged offence and APCOA do not have the authority to transfer the liability of a criminal offence to the keeper. Please refer to paragraph 3 for further related information in relation to the alleged breach.

 

2)     Misleading and confusing use of the term ‘Penalty Notice’ and ‘Parking Charge Notice’

APCOA online reference to the notice leading to the payment page shows the notice headline as ‘Parking Charge Notice’ (Evidence reference 1), which contravenes the BPA's Code of Practice Appendix G, Para 5.4 where the use of ‘Parking Charge Notice’ must not be used if it is a penalty notice (Evidence reference 2). As a result, this has caused confusion because it indicates POFA 2012 is used in this situation and POFA 2012 does not apply on Railway Land.

Furthermore, this also indicate there are two separate notices and if one was paid, the concern was the other notice would be outstanding without any knowledge. This was raised during the appeal to APCOA, which was not replied to or clarified in their standard response and as a consequence, the confusion remained (Evidence reference 4).

 

3)     Change in alleged ‘Breach’

APCOA original letter stated that there was a breach of Railway Byelaw 14, with no mention of the specific byelaw under this group, no reference to the statutory instrument or any information relating to the alleged breach of the byelaw. Basically, no information as to what exactly the breach related to.

Furthermore, in APCOA's appeal rejection letter, it then stated there were a breach of terms and conditions for parking. The wording of “breach of terms and conditions of parking” was not mentioned within the original letter shown within evidence reference 2, which is highly misleading and appear to set out to mislead in regard to liability and the nature of the notice, which indicates it has been changed to a form of contractual breach rather than criminal offence (Evidence reference 4). The alleged offence or alleged breach cannot be changed after an appeal was put in and APCOA cannot use a mix of methods to obtain data from DVLA, therefore, the data from DVLA were unlawfully obtained in this circumstance. I will be raising this concern with DVLA and DVLA may stop sharing its’ data with APCOA in the future. 

ObserverOfLife

Part 2:

4)     Harassment and excessive level of demand

The approach taken by APCOA amounts to harassment, with three appeal rejection letters received in the space of 5 days (Evidence reference 5) along with demand to pay the ‘penalty’. As a Deaf and Disabled person under the protected characteristics of the Equality Act 2010 (Evidence reference 6), I am also classified as a vulnerable person and as such, has been mentally impacted. I have found this to be extremely excessive, frightening and concerning to be targeted in this way as it also indicated there were 3 different notices, causing further confusion. This appeared to be designed to frighten and coerce individuals into paying to end the matter and I will be raising this concern with my MP as the manner of APCOA is predatory. The approach taken is certainly not in line with BPA’s Code of Practice in relation to Professionalism.

 

5) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012

The confusion remain on whether this is a ‘Penalty Notice’ or ‘Parking Charge Notice’ as the result of APCOA’s notice, if APCOA want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and APCOA have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that APCOA have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA. Furthermore, the notice to keeper was not received within the maximum 14 day’ period from the date of the alleged breach. Specifically, the alleged breach occurred on XX July 2023, and the notice to keeper was received 17 days later on XX July 2023.

The BPA code of practice also says '21.14 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.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.

In this case, I am not satisfied that APCOA had reasonable cause to ask DVLA for my detail, nor did they provide sufficient evidence of reasonable cause. This is in addition to paragraph 3 where the method of obtaining data from DVLA were unlawful and I intend to raise a complaint about the use of DVLA information which I did not provide consent for.

6) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)

Railway land is not 'relevant land' within the meaning of PoFa 2012 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 put the Operator to 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 bylaws.

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.’

7) The operator 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. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

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 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 penalty notice cannot be enforced against a keeper without a valid NTK.

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 an operator 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 the Operator, 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 penalty notice. 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."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 6 above.

The onus is on APCOA to identify who the driver is. Please refer to paragraph 11 for further information around APCOA’s definition.

ObserverOfLife

Part 3: I've found #8 quite interesting - I will share a photo in below post. The signage was at over 7.5ft and there were no other terms & conditions' signage clearly shown on the land. Surely this is unfair and not allowed to make signs inaccessible?

8) Lack of evidence around signage, inaccessible signage and use of ANPR

In my appeal, I invited APCOA to provide evidence of signage of any breach of byelaw or further information (Evidence reference 3) and they neglected to provide me with any evidence of the signage. The alleged contravention, according to APCOA’s appeal rejection letter, is in 'breach of the terms and conditions of parking has occurred.  An acquaintance took a photo on my behalf and pointed out that there was only one signage that showed terms & conditions and this was wholly inaccessible because it stood at a lofty height over over 7.5ft, making it impossible for anybody to review and understand the terms & conditions unless they somehow brought along a ladder (Evidence reference X). It was also based in an inadequate position that is not obvious for anybody on the land.

On that basis, due to the inaccessibility of the signage, it can only be concluded that there are no mention or explanation of how ANPR is used or captured that would hold the keeper accountable for a breach of “terms and conditions”. This contravenes BPA’s Code of Practice, Appendix X, para 22.1, where it stated signs must explain that this technology is being used and what the data captured will be used for. Therefore, APCOA have failed to provide a clear signage that is accessible in order to ensure users has the relevant information to make an informed decision.


9) No landowner contract nor legal standing to form contracts or charge drivers

I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give APCOA Parking Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, APCOA Parking Ltd’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require APCOA Parking Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that APCOA Parking Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the landowner/occupier that entitles APCOA Parking Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to APCOA Parking Ltd to prove otherwise so I require that APCOA Parking Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PN or PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between APCOA Parking Ltd and the owner/occupier, containing nothing that APCOA Parking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

10) Authenticity of photograph and use of technology

I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on-top of the photos in the upper right-hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge APCOA that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data). Furthermore, I would require APCOA to provide evidence of calibration of the timing and technology used to ensure its’ accuracy is consistent.

 

11) Mis-presentation of the law used

The appeal rejection letter used the law of “Vehicle Excise and Registration Act 1994 (C.22) as a clarification as to the definition of an owner relating to a vehicle in order to enable them to pursue the individual. This legislation does not state this definition and this legislation has been misrepresented in order to push the agenda of obtaining fund (Evidence reference 7). If APCOA claim that it is specified within this legislation, I challenge them to produce evidence of this definition within the legislation and how they came to interpret this for the context of this notice.

 

12) Insufficient provision of signal coverage to ensure technology is fit for use

XXXX Railway station is a remote place in the countryside and is notorious for unreliable signals, which would hamper use of technology. The vehicle in question has a long history of RingGo payments and it would be deeply unusual to opt out of paying on this occasion. The vehicle confirmed the RingGo app showed payment was confirmed. However, it appeared that this was timed out and did not go through fully due to poor signal. While any issues in paying via mobile applications is unfortunate, the onus is on APCOA to ensure that there is sufficient signal coverage or wi-fi to enable users to use technology safely and without interruption. In this circumstance, APCOA has not ensured users can access any payment applications without issues in a notoriously poor signal area.

 

Summary:

From the information and evidence provided, it has shown that APCOA has not abided with the BPA’s Code of Practice, causing enormous confusion around the nature of this notice and whether it is a penalty notice or parking charge notice (Paragraph 2). This is further complicated by APCOA’s statement that it is a breach of terms & conditions of parking within their appeal rejection’s letter when it was a breach of Railway Byelaw in the original letter (Paragraph 3). Any changes in alleged breach during processes is unlawful and this results in illegal obtaining of DVLA’s data.

The lack of relevant information provided by APCOA supports the notion that the nature of this notice is confusing and misleading so that an informed decision could not be made.

Railway is not ‘relevant land’ under POFA 2012, APCOA have failed to identify the driver or owner and the liability can not be legally passed onto the keeper.

I plan on contacting my MP, Department for Housing and Levelling Up and the landowner to express my concerns around the manner of the approach taken by APCOA and the nature of the notice.

I therefore request that POPLA uphold my appeal and cancel this PN or PCN.

Regards,

 

ObserverOfLife

Even when zoomed in, T & Cs is not accessible. Instant KO surely?! Any specific regulations that I can add in re. accessibility of signages?

lily10

Thank you for this ObserverOfLife!
I have a similar situation re a penalty Notice issued by APCOA in a station car park ( separate thread under Lily10) so have been following your thread with interest. I have had the appeal rejection from APCOA and need to submit the POPLA appeal in another 2 weeks. 
What you have written here is hugely helpful to me so I extend a huge thank you and will keep following this to see what happens.
Great submission and good luck!

KeithP

ObserverOfLife said:

Even when zoomed in, T & Cs is not accessible. Instant KO surely?! Any specific regulations that I can add in re. accessibility of signages?

Are you going to include that image in your PoPLA appeal?
Any other useful images you could include?