PCN APCOA- BHX Airport

sammyw84 wrote: »

have you heard back yet?

Yes almost immediately upon sending the initial template.

Unfortunately I was taken seriously ill shortly thereafter and had to get the emergency ice-cream van to take me into hospital toute suite. I spent sometime in there unfortunately. I am only recently back home.

I must say I'm rather cognitively impaired due to medication right now but I've cobbled together what I can for the POPLA appeal. Forgive me if I've overlooked anything obvious but reading large chunks of texts is quite debilitating for any length of time right now. I am however determined to get this in.

If I post what I've managed so far would someone give it the once over, please?

Note the rejection from APCOA does not mention PoFA or byelaws, but breach of contract :

"by choosing to leave your vehicle in the car park you agreed to the terms and conditions and as such agreed to abide by the condition set out on clear signs at the entrance and throughout the car park"

"Drivers are prohibited to stop, unload, or park on red routes or zig zag lines.."

Driver paused for 11 seconds trying to find a disabled parking bay there are none at BHX you have to take your card to a booth and get a ticket. which the driver eventually did. 3 Photos show the car in a slip road with a full line of traffic to the right. The third of the car (4th in the list supplied)at a longer distance shot. Its not clear that its even the same car

So here it is :

POPLA Ref : x
APCOA Parking PCN no : y


A “Parking Charge Notice” was issued on 10th February 2018 and received by me, the registered keeper of "XYZ" on 14TH February 2018 for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at Birmingham Airport.

Appeal rejected by APCOA dated 23/03/2018.

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

Incs, Blue Badge scan


1) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
2) Airport Act 1986
3) 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)
4) Misleading and unclear signage
5) No landowner contract nor legal standing to form contracts or charge drivers
6) Photo evidence appears doctored


1) 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.’

2) 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 byelaws say that byelaws only apply to roads to which road traffic enactments do not apply

3) 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 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 1 above.

4) The alleged contravention, according to APCOA, is in 'breach of the terms and conditions of use of the car park and signs are clearly displayed'. It would however appear that signage across these location do not comply with road traffic regulations or their permitted variations and as such are misleading - they are unable to be seen by a driver and certainly could not be read 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 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 are no signs of this nature at the location captured by supposed ANPR.

In addition, the signage supplied by APCOA in rejection of the appeal specifically states “No stopping at any time to drop off or pick up”.

No one left, or indeed entered the vehicle. The vehicle wasn’t parked, as the original “PCN” states. The engine was running and driver was merely trying to negotiate a disabled parking bay of which there seems to be none. One of the occupants of the vehicle is a Blue Badge holder. I attach proof of this by way of the occupants Blue Badge.




5) 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.

6) I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamp. By close examination of the photographs, the details 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 that even a limited ability user of such software to add these black boxes and text with authentic looking capture 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.

The fourth photo additionally submitted, it isn’t even clear that it is the same vehicle in question. I therefore disregard this completely.


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



Blue Badge: (Here is a pic that has the number redacted except for the last 5 characters)

If anyone can add/amend/delete or just general advice, I'd be grateful.

k

Almost immediately it came via email, the letter came dated 23/03/2018 and it states 28 days from the date of this letter. So I have time according to that?

k

Edit :I'll check the date of the email with the keeper, hang on I'll find out the exact date, I wasn't compos mentis at the time when they visited me in "Bedlam", so just passing on what I was told. The letter I have from keeper is definitely dated 23/03/2018 and 28 days to get it in thereafter.

Ok keeper was talking about initial notification of appeal recorded, not the subsequent rejection letter which is indeed 23/03.

Nurse!!

k

Do i need to add PoFA? Anything else?
I'm assuming 'not relevant land' is the most important one here?

k