Luton Drop-off / Pick-up PCN

I am appealing against APCOA for a PCN for alleged picking up in a restricted zone and have drafted the appeal below. APCOA have said in their appeal refusal that the '...notice has not been issued under POFA 2012 nor under Airport Byelaws but has been issued in line with BPA Guidelines':

POPLA Ref xxxxxxxxx
APCOA Parking PCN no xxxxxxxxxx

A notice to keeper was issued on 18th July 2018 and received by me (the registered keeper) of vehicle registration XXXXXXX on 20th July 2018 for an alleged contravention of ‘Dropping Off or picking up outside designated areas’. 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) Amount demanded is a penalty not a genuine pre-estimate of loss
2) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
3) Not relevant Land under POFA 2012; no registered keeper liability
4) Misleading and unclear signage
5) Reasonable cause for requesting keeper details from DVLA
6) No landowner contract nor legal standing to form contracts or charge drivers
7) Photo Evidence appears doctored
8) No Grace Period Given (Clause #13 BPA Code of Practice)

1) The amount of the charge is disproportionate to the loss incurred by APCOA Parking Ltd and 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 neither clear nor ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

2) APCOA has indicated on appeal that the notice was not issued under POFA 2012 and therefore the Keeper Liability provisions of Schedule 4 of POFA 2012 are not applicable on this occasion.
If APCOA were 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 car park where the parking event took place, the 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 16th June 2018, and the notice to keeper was received 34 days later on 20th July 2018.

3) Airport land is not 'relevant land' as it is already covered by statutory byelaws and so is specifically excluded from 'Keeper Liability' under Schedule 4 of the Protection of Freedoms Act 2012. In my capacity as registered keeper I am not legally liable for keeper liability as this Act does not apply on this land. I put the Operator to strictly prove 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 byelaws.

4) The alleged contravention, according to APCOA, is in 'breach of the terms and conditions of use of the car park infrastructure and signs are clearly displayed'. It appears that signage at this location does not comply with road traffic regulations or their permitted variations and, as such, are misleading, as they are unable to be seen and assimilated by a driver without stopping, and therefore do not comply with the BPA code of practice. APCOA are required to show evidence to the contrary.
I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: ''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 a size, as to be safely read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it.''
There appear to be no readable or even visible detailed Terms and Conditions parking signs (Section 18.3 of the BPA Code of Practice), especially not from a moving vehicle. The Car Park Regulations section (section 1.8) of the ‘Car park booking and use terms and conditions’ displayed on the Luton Airport official web-site make no reference to picking-up or dropping-off regulations.
Finally, the time the vehicle was allegedly stopped, as indicated by the images supplied by Apcoa, is no more than 4 seconds.

5) The BPA code of practice also says '20.14 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.

6) 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.

7) 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 photographs in the upper left hand corner. It is well within the realms of possibility for even an amateur to use 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 (See <Daily Mail Article on UKPC doctoring photos> for more information).
I would challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photographs (including viewing direction, camera location etc.). I would also challenge APCOA that they possess the technology to generate these precise coordinates, as they have been so amateurishly applied to the photograph.

8) As per section 13 of 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.’
Given the above points of ambiguous signage, including mixed fonts and images, it is unreasonable to expect a driver to be able to read the entire signage whilst driving. Therefore, if a driver stops for a brief moment to read a sign, they MUST have the opportunity to leave and not accept the terms of an alleged ‘contract’. 4 seconds I would argue does not breach a fair ‘grace period’, and therefore APCOA are in breach of the BPA Code of Practice.

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