APCOA - BHX Birmingham airport Ibis PCN - POPLA

LightMemory

As a registered keeper I got an invoice (PCN) from APCOA accusing me of stopping in the layby. 

On the first instance I took advise from this forum and sent them an appeal using the blue text in the newbie thread. That was rejected and was offered an independent appeal with POPLA which I took them up on.

Having searched around this forum there was no recent appeal by others for this PPC. 

Below is my appeal to POPLA:

Date: [DATE]

POPLA Ref: [POPLA-REF]
APCOA Parking PCN No.: [PCN-NO]

Includes: Copy of APCOA letter dated [DATE]

A ‘Parking Charge Notice’ was issued on [DATE] and received by me, the registered keeper of [REG] on [DATE] for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’ at Birmingham Airport.

Appeal rejected by APCOA dated [DATE].

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

1.      APCOA not using POFA 2012

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

3.      Airport Act 1986

4.      Amount demanded is a penalty

5.      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)

6.      Misleading and unclear signage and not seen so no contract entered into or formed

7.      No landowner contract nor legal standing to form contracts or charge drivers

8.      Photo evidence appears doctored

9.      Insufficient Grace period

10.  The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5) of the Protection of Freedoms Act 2012 (POFA).

11.  Data Protection Act and BPA Code of Practice breached and no reasonable cause given for requesting keeper details from DVLA.

12.  Rejection appeal based on incorrect and outdated images

1. APCOA not using POFA 2012

From their rejection of my initial appeal, it appears that APCOA are attempting to claim the charge is liable to them under airport bye-laws. I reject this and put them strictly to proof on which bye-law they claim is broken, and in any case, why this would result in an obligation to pay APCOA.

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

Airport land is not 'relevant land' as it is already covered by statutory bylaws 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 Airport Authority 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.’

3.  Airport Act 1986

Airport byelaws do not apply to any road to which the public have access, as they are subject to road traffic enactments:

Airport Act 1986
65 Control of road traffic at designated airports
(1) Subject to the provisions of this section, the road traffic enactments shall apply in relation to roads which are within a designated airport but to which the public does not have access as they apply in relation to roads to which the public has access.

Both the Airport Act and Airport bye-laws say that bye-laws only apply to roads to which road traffic enactments do not apply

4. Amount demanded is a penalty

Also, it is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was positioned such that the motorist has not time to read it and consider it safely from a moving vehicle, and so has two options: (1) the motorist stops the car in the road just before the sign, therefore blocking and interrupting the flow of traffic, or (2) the motorist stops the car in the lay-by and walks back to read it. Neither case is satisfactory as a charge would be applied instantly the vehicle stopped.

5.  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 keeper 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 parking charge 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 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."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 2 above.

6.  Misleading and unclear signage and not seen so no contract entered into or formed

The alleged contravention according to APCOA is in" breach of the terms and conditions of use of the car park/private roads/roads. Signs are clearly displayed…" It would appear that signs at this location do not comply with road traffic regulations or their permitted variations and as such are misleading as they are unable to be seen by the driver and could not be read without stopping and so do not comply with BPA code of practice. APCOA are required to show evidence to the contrary. In particular the No Stopping Zones section of the Chief Adjudicator's first annual report 2013 states "It is therefore very important that any prohibition is clearly marked bearing in mind that such signage has to be positioned and be of such size as to be read by a motorist without having to stop to look at and read the signs. Signs which are on the red routes unlike the ones indicating most parking restrictions are usually positioned to face the oncoming traffic rather than parallel to it. The BPA code of Practice states drivers must be given time to read and understand and agree or disagree to a contract. Stopping to do this does not mean anyone has agreed to a contract.

7.  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 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.

8.  Photo evidence appears doctored

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 left 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 (Independent.co.uk 27 April 2018).

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).

9.  Insufficient Grace period

As per the BPA Code of Practice: 'You should allow the driver a reasonable 'grace period' in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.' Therefore, if a driver stops for a short period of time to read a sign, they must have the opportunity to leave and not accept the terms of an alleged 'contract'. A few seconds, I would argue, does not breach a fair 'grace period', and therefore APCOA are in breach of the BPA Code of Practice.

10. The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5) of the Protection of Freedoms Act 2012 (POFA).

To support this claim further the following areas of dispute are raised:

The Notice to Keeper does not warn the keeper that, if after a period of 28 days, APCOA PARKING. has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA). POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights, a NTK must adhere to the following points:

it must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii) the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Upon reviewing the NTK, APCOA PARKING have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f). The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

LightMemory

Cont...

11. Data Protection Act and BPA Code of Practice breached and no reasonable cause given for requesting keeper details from DVLA.

To access DVLA data, parking companies must sign up to the Kadoe contract which allows the company to retrieve keeper data electronically for the reasonable cause of seeking recovery of unpaid parking charges. Kadoe contracts attach several conditions to the access including that the parking company seeks recovery from the driver or the keeper if the procedure in schedule 4 of the POFA is used. The contract states that data can only be used to enforce the ticket using Schedule 4 of POFA .

Hence if the parking company tries to claim liability against the keeper with no evidence to suggest they were the driver then the data would have been misused. If the keeper will not name the driver in circumstances where POFA can no longer apply, then the parking company would be breaching the Act if they continue to process their data.

12.  Rejection appeal based on incorrect and outdated images

The rejection of the initial appeal by APCOA is based on the assertion that the vehicle was stopped in an area “clearly designated as ‘hotel drop off only’.” However, the photographic evidence relied upon by APCOA is dated 23 May 2017 at 13:31 (see Figure 1), while the alleged contravention occurred on 4 April 2025 at 18:16.

This raises a serious and material question: How could APCOA rely on an image captured nearly eight years prior to the alleged incident to support a claim regarding signage in effect at the time? It is clearly not possible for evidence from 2017 to establish or prove the circumstances of a contravention alleged to have occurred in 2025.

[PHOTOS PROVIDED BY APCOA DATAED 2017]

Figure 1

Further, a comparative analysis of the signage shown in that historic image (Figure 1) and the signage captured in the more recent photographic evidence provided by APCOA dated 1 May 2025 (Figure 2 below) demonstrates significant differences in both the size and wording of the signage. This evidences that the signage has materially changed since 2017.

[PHOTO OF THE CURRENT SINGAGE]

Figure 2

This directly undermines the credibility of APCOA’s representations and further supports Appeal Point 8, which raises concerns about misleading and inconsistent evidence. The use of outdated and inaccurate images calls into question the reliability of the evidence provided and, by extension, the enforceability of the charge.

It is submitted that no reasonable enforcement action can be sustained on the basis of such flawed, misleading, and irrelevant evidence. Consequently, the Parking Charge Notice should be cancelled in its entirety.

In light of the foregoing twelve grounds of appeal, I respectfully request that POPLA allow this appeal and direct that the Parking Charge Notice be cancelled in full.

This was sent on the very last day I could appeal to POPLA

LightMemory

Got the following email from POPLA about 19 days after submitting my 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

Tracking my appeal process on the POPLA, all its says is "Appeal has been withdrawn by the operator" the date but no reason given. 

I guess APCOA did not want to go through my 10 page appeal. Nevertheless the PCN has been cancelled!

Thanks to this forum, it has been fruitful for me and hope it helps others along the way.

Coupon-mad

Very good. Always happens! Nicely done. 

kryten3000

LightMemory said:

Got the following email from POPLA about 19 days after submitting my appeal:

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

I really, really hate this choice of wording. It is deliberately confusing and makes it look like the appeal has failed when the opposite is true.  Only the appellant can withdraw an appeal,  The old wording "declined to contest" is much clearer.

doubledotcom

...or "conceded"!

LightMemory

I really, really hate this choice of wording. It is deliberately confusing and makes it look like the appeal has failed when the opposite is true.  Only the appellant can withdraw an appeal,  The old wording "declined to contest" is much clearer.

Agree, it is confusing, I had to read it couple of times. They should make it clearer for everyone to understand, POPLA tacking site is even worse as you don't know where you stand.