APCOA Penalty Notice - POPLA appeal stage - mistake?

nuoretrapparit

Still no POPLA decision - anyone else waiting a while? 

Grizebeck

It is irrelevant 

nuoretrapparit

Appeal successful with POPLA! They allowed it in the grounds that the operator cannot issue penalty notices if the landowner contract mentions PCNs. Thank you to all posters in this thread for your help with this.

Gr1pr

Excellent, please add this to the POPLA Decisions thread near the top of the forum, linking this thread 

Please add a redacted copy of the Popla decision below too

nuoretrapparit

Here is the POPLA response:

Decision

Successful

Assessor Name

Claire Brackenridge

Assessor summary of operator case

The parking operator has issued the penalty notice (PN) due to using a private car park without making a valid payment.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal.

• This is not relevant land under POFA 2012, therefore no registered keeper liability can be established. They have provided a reference number for another POPLA appeal.
 • The keeper of a vehicle cannot be assumed to be the owner.
 • As the keeper of the vehicle, it is their right not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. 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 to show that (as an individual) they have personally not complied with terms in place on the land and show they are personally liable for their parking charge.
• APCOA’s online reference to the notice leading to the payment page shows the headline as ‘Parking Charge Notice’, which contravenes the BPA's Code of Practice Appendix G, Paragraph 5.4 where it says ‘Parking Charge Notice’ must not be used if it is a penalty notice. 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 indicates there are two separate notices and if one was paid, the concern was the other notice would be outstanding without any knowledge.
 • They have raised landowner authority and say they do not believe that APCOA has demonstrated a proprietary interest in the land
• They 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.
• They bring into question the authenticity of the photographs taken of the vehicle. The time, location, direction details are added as a black overlay box on-top of the photos. It is 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. They would challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photos. Furthermore, they would require APCOA to provide evidence of calibration of the timing and technology used to ensure its accuracy is consistent.
 • 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. If APCOA claim that it is specified within this legislation, they challenge them to produce evidence of this definition within the legislation and how they came to interpret this for the context of this notice. The appellant has provided a screenshot of the APCOA website that states, “View the evidence, pay or challenge my Parking Charge Notice (PCN/ECN/PN)”, and an image of the front of logbook that states the document is not proof of ownership. The above evidence has been considered in making my determination. After reviewing the operator’s evidence, the appellant reiterates their grounds of appeal. They have said the keeper of a vehicle cannot be held liable for any penalty notices issued, whether it is POFA compliant or not, as the front of a logbook states that keeping a vehicle does not prove ownership. The Operator cites Section 22 of the Vehicle Excise and Registration Act (1994), which contains no mention of the word ‘owner’, nor contains any mention, whether explicit or implied, that keeping a vehicle is proof of ownership. They have provided a weblink for this. The operator's assertion of this point, with the prefix ‘For further clarification’, is not supported by the legislation in question. Furthermore, the Ask The Police online resource is clear in its judgement that keeping a vehicle does not prove ownership, and they have provided another weblink. The appellant has said the operator’s signage evidence is irrelevant as this was not raised in their appeal. This suggests a cut-and-paste approach from the operator regarding the pursuit of this Penalty Notice. The Operator's inclusion of correspondence to show consistent terminology was used, is limited to correspondence for which no dispute was raised in the appeal. It is the online platform that mentions Parking Charge Notices, and this is where the confusion arises. The appellant has said neither Govia Thameslink Railway Company Limited nor Govia Thameslink Railways Company Limited, the two landowner entities listed in the agreement, are company names listed on the Companies House register, so they are unclear exactly as to which landowner this agreement even refers to. Even if the agreement did contain the name of an existing legal entity, it states the operator is the creditor of ‘all notices of parking charge issued’, with right to pursue these in the county court. As mentioned in the appeal and as subsequently confirmed by the operator, the notices issued to the keeper by post are Penalty Notices, not Parking Charge Notices, or Notice of Parking Charge, or any such wording. They therefore do not see the relevance of this contract relating to this appeal and strongly challenge the right of the operator to issue Penalty Notices of this kind on behalf of the landowner.

Assessor supporting rational for decision

I am allowing this appeal, with my reasoning outlined below:

 It is the responsibility of the operator to provide POPLA with sufficient, clear evidence in order to rebut the appellant’s claims and prove that it issued the Penalty Notice (PN) correctly. In their appeal, the appellant has raised landowner authority. They have said they do not believe APCOA has demonstrated a proprietary interest in the land. The appellant has said the landowner document provided by the operator states they are the creditor of ‘all notices of parking charge issued’, with right to pursue these in the county court, but in this case, the notices issued to the keeper by post are Penalty Notices, not Parking Charge Notices, or Notices of Parking Charges. Therefore they do not see the relevance of this contract and strongly challenge the right of the operator to issue Penalty Notices of this kind on behalf of the landowner. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 7.1 of the Code outlines that parking operators must have written authorisation from the landowner or their agent, to manage the land in question. This can come in the form of a witness statement under Section 23.16B of the BPA Code of Practice or a full contract. In this case as a penalty notice has been issued in breach of railway byelaws, I would expect the landowner agreement to detail this fact. However the agreement the parking operator has provided does not mention penalty notices or railway byelaws. It refers to parking charges and notices of parking charges. Therefore, I cannot be sure the operator has the authority to issue penalties at this site and so I cannot conclude that the PN was issued correctly. I note the appellant has raised other issues as grounds for appeal however, as I have decided to allow the appeal for this reason, I did not feel they required further consideration. Accordingly, I allow this appeal

Coupon-mad

This should be front and centre of all POPLA appeals re APCOA at railway stations. Thanks for leading the way. This is a new appeal point (can't recall who first spotted it but kudos to them!).

As it is now all over, please tell us the date of decision and the POPLA Code (which it is now safe to share as it's a completed case).

LDast

The APCOA "penalty" is not a real penalty. It is an offered contract in which APCOA promises not to prosecute for an alleged breach of Byelaws, on condition that you pay them £100 or whatever. Nobody has any obligation to accept an offered contract, so nobody has any legal obligation to pay APCOA the requested amount.

Complaint already sent to BPA asking for clarification.

APCOA issued Penalty Notices should be challenged on the basis that it is unclear whether APCOA is enforcing this under the Railway Byelaws (in which case, prosecution should follow for non-payment) or under private contract law (in which case criminal penalties should not be mentioned).

If APCOA is enforcing this as a private matter, the mention of criminal penalties and prosecution is unlawful and an attempt to pressure you into paying.

The fact that POPLA is referenced suggests this is being treated as a private parking charge, but they are using byelaw language. This inconsistency is grounds for challenging the legitimacy of the notice.

Why is APCOA, a private company, the recipient of payment for a statutory penalty? If the charge is under byelaws, payment should be to the relevant authority (e.g., the TOC or Network Rail)

LDast

This is the letter sent to the BPA:

British Parking Association
Head Office

Haywards Heath, West Sussex, RH16 1BA

Email: info@britishparking.co.uk

7th October 2024

Subject: Formal Complaint Regarding APCOA's Misuse of Penalty Notices Under Railway Byelaws

Dear Sirs,

I am writing to raise a formal complaint on behalf of numerous motorists who have received "Penalty Notices" from APCOA Parking (UK) Ltd, issued under railway byelaws. These are not Parking Charge Notices and I understand the differences. At this stage, I do not intend to identify the individual motorists involved, as this complaint is being raised to clarify the BPA's position on the issue and to seek your response on whether APCOA’s practices align with the BPA's Code of Practice.

It is important to highlight that these "Penalty Notices" are not actual statutory penalties but rather an "offered contract" in which APCOA requests a payment of £100 in exchange for not pursuing prosecution. However, it is a well-established principle that nobody has any obligation to accept an offered contract, and thus no motorist has any legal obligation to pay the amount requested by APCOA. This is a significant point that needs clarification from the BPA.

I am already in the process of raising this issue with both APCOA and the DVLA, and I expect the BPA to address this complaint seriously and transparently, without attempting to obfuscate or dismiss the concerns. Specifically, I would appreciate the BPA’s response to the following:

1. Misleading Notices: The "Penalty Notices" issued by APCOA give the false impression that motorists are legally obligated to pay, when in reality, it is merely an offered contract that can be freely rejected. This is misleading and unfair to the recipients, and I would like to know whether the BPA considers this practice consistent with its Code of Practice.

2. Misuse of KADOE Data: I am also concerned that APCOA may be misusing vehicle keeper data obtained through the DVLA’s KADOE system. Keeper data is intended to be used for the enforcement of statutory penalties or legitimate parking charges, yet APCOA is using it to pursue payments for an optional contract that has no legal backing. I request the BPA’s position on this potential misuse of data.

3. No Legal Obligation to Pay: As mentioned, there is no obligation for any motorist to accept APCOA’s offered contract. The BPA needs to clarify whether APCOA’s notices are misleading motorists into believing they must pay, when in fact they are under no legal obligation to do so.

At this stage, my intention is to clarify the BPA's position on these practices. Should I not receive a satisfactory response, I will be raising this matter with the appropriate government departments and ministers, where potential liability for the BPA may also become a factor.

I look forward to your full and transparent response on this matter, as it is critical that the BPA ensures its members adhere to fair and lawful practices.

Yours faithfully,

B789 (I used my real name)

Umkomaas

👆 Nice one. Looking forward to read their reply!

nuoretrapparit

Coupon-mad said:

This should be front and centre of all POPLA appeals re APCOA at railway stations. Thanks for leading the way. This is a new appeal point (can't recall who first spotted it but kudos to them!).

As it is now all over, please tell us the date of decision and the POPLA Code (which it is now safe to share as it's a completed case).

Thanks - I just did as I was told! The code is 0511844044 and the decision is dated 10 October.