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    • Elsie456
    • By Elsie456 11th Jan 19, 9:42 AM
    • 7Posts
    • 2Thanks
    Luton Airport APCOA PCN POPLA
    • #1
    • 11th Jan 19, 9:42 AM
    Luton Airport APCOA PCN POPLA 11th Jan 19 at 9:42 AM
    Hi all.
    I received PCN from APCOA regarding Drop off / pick up outside designated areas (29 days after contravention). After reading the Newbies thread, I appealed the charge with the template. Then received email with unsuccessful appeal. So am now at POPLA stage. I have looked through many threads relating to the same stage as mine and have drafted my POPLA response. I would appreciate it if you can take a look to check that I haven't included parts not needed or missed out anything important.
    I will post all correspondence so far to let you have all clear details, sorry if it is too much info that you do not need to see!
    Thanks for your help in advance.

    First PCN

    Date of issue 7/1/19
    Notice is hereby served to the registered keeper of vehicle reg XXXX
    For the alleged contravention of Dropping off or picking up outside designated areas
    At London Luton Airport Central Terminal Area
    On 10/12/18 at 14:47
    The alleged contravention is a BREACH OF THE TERMS AND CONDITIONS OF USE of the car park infrastructure where signs are clearly displayed throughout the area showing these terms and conditions.
    *Then 4 pictures showing a passenger getting into the car, times noted from 14:47:22 to 14:47:34* 12 seconds!

    Appeal sent online to APCOA

    Re PCN number: XXXXXX
    I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a formal complaint about your predatory conduct to your client landowner and to my MP.
    There will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require ALL photos taken and an explanation of the allegation and your evidence, i.e.:
    - If the allegation concerns a PDT machine, the data supplied in response to this appeal must include the record of payments made - showing partial VRNs - and an explanation of the reason for the PCN, because your Notice does not explain it.
    - If the allegation involves an alleged overstay of minutes, your evidence must include the actual grace period agreed by the landowner. If you fail to evidence the actual grace period that applies at this site or suggest that only one period applies, this will be disregarded as an attempt to mislead. In the absence of evidence, it will be reasonably taken to be a minimum of twenty minutes (ten on arrival and ten after parking time) in accordance with the official BPA article by Kelvin Reynolds about 'observation periods' on arrival being additional and separate to a 'grace period' at the end.
    - in all cases, you must include a close up actual photograph of the sign you contend was at the location on the material date.
    Formal note:
    Should you later pursue this charge by way of litigation, note that service of any legal documents by email is expressly disallowed and you are not entitled to assume that the data in this dispute/appeal remains the current address for service in the future.
    Yours faithfully,
    Registered Keeper

    Rejection email from APCOA

    Dear XXXXX
    POPLA Verification Number: XXXXXX
    CONTRAVENTION DATE: 10 December 2018 14:47
    Thank you for your appeal received 08 January 2019 against the above Parking Charge Notice. Having carefully considered the evidence provided by you, we must advise your appeal has been unsuccessful on this occasion. You were issued a notice having received an allegation of contravention at Luton Airport. Having investigated further, we have found that your vehicle was pictured in breach of the above terms set by Luton Airport, picking up outside of a designated parking area, having failed to enter the designated pickup and drop off zone or short term car park. All restricted areas are signposted and clearly state that no stopping is allowed at any time to drop off, pick up or for any other reason. CCTV and number plate recognition is in operation. Anyone in contravention of this restriction will be liable for a parking charge notice of up to £80.00.There is a £3.00 Drop off Zone in place at Luton Airport. This was introduced to ease traffic congestion at the terminal. We do however offer free parking at the Mid Term car park for up to 30 minutes. Restrictions in place at Luton Airport do not allow passengers to enter or exit the vehicle when on the approach roads or roundabout; even in the event of a forced stop due to traffic. This rule has been enforced to ensure the safety for pedestrians and drivers around Luton Airport, as well as to maintaining the traffic flow.
    Luton Airport is a private property of London Luton Airport all the enforcement are carried out according to British parking association (BPA) guidelines and APCOA being an approved operator of BPA is authorized to manage and enforce the property on behalf of London Luton Airport. Any vehicles in contravention of the T&C of the Luton Airport are sent out to DVLA for registered owner’s information under BPA guidelines. Please note as the registered keeper of this vehicle, you are liable for this ticket, unless details of the driver are provided. The driver entered onto private land freely and in full acceptance of the terms of parking clearly displayed. The terms and conditions are offered; and by remaining onsite, these are accepted. The Grace Period is not applicable as the person was not in a car park but was on a road way that is regulated under the Airport’s Byelaws which clearly state that (Luton 3.6 (c) vehicles should not be parked on roadways that are on the Airport Land. As your vehicle was parked in contravention of the terms and conditions of the site we are satisfied that the notice was correctly issued in accordance with the BPA code of practice, and therefore not able to waiver the charge on this occasion. Therefore you now have a number of options: Pay the Parking Charge Notice at the discounted price of £48 within 14 days. Please note that after this time the Parking Charge Notice will increase to £80.
    * A photo included of a sign* Sorry I'm not sure how to upload the pictures.

    Draft appeal to POPLA

    APCOA Parking PCN no XXXXXX

    A notice to keeper was issued on 7th January 2019 and received by me, the registered keeper of XXXXX on 8th January 2018 for an alleged contravention of “Dropping off or picking up outside designated areas’’ at London Luton Airport Central Terminal Area. 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) Airport Act 1986
    3) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
    4) Reasonable cause for requesting keeper details from DVLA
    5) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
    6) 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)
    7) No landowner contract nor legal standing to form contracts or charge drivers
    8) Misleading and unclear signage
    9) Photo Evidence appears doctored
    10) No Grace Period Given (Clause #13 BPA Code of Practice)

    1) From their rejection of my initial appeal, it appears that APCOA are attempting to claim the charge is liable to them under airport 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.

    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) 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 10th December 2018, and the notice to keeper was received 29 days later on 8th January 2019.

    4) 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.

    5) 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. 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 byelaws.
    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.’

    6) 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 5 above.
    7) 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) The alleged contravention, according to APCOA, is in 'breach of the terms and conditions of use of the Airport road infrastructure and signs are clearly displayed'. It would however appear that signage at this 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 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 12 seconds.

    9) 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 right-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.

    10) 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.' 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'. 12 seconds, I would argue does not constitute 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.

    Please hit me with your thoughts!
Page 1
    • Fruitcake
    • By Fruitcake 11th Jan 19, 10:49 AM
    • 39,120 Posts
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    • #2
    • 11th Jan 19, 10:49 AM
    • #2
    • 11th Jan 19, 10:49 AM
    I've not looked in detail yet, but you seem to have most points covered. You could add that stopping (which would include picking up and dropping off) is not parking as shown in the Jopson case. 2392A09CF228A46&disposition=0&alloworigin=1
    I married my cousin. I had to...
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    • Coupon-mad
    • By Coupon-mad 12th Jan 19, 12:34 AM
    • 68,551 Posts
    • 80,770 Thanks
    • #3
    • 12th Jan 19, 12:34 AM
    • #3
    • 12th Jan 19, 12:34 AM
    TBH, APCOA will fold on seeing any long POPLA appeal from the keeper!
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • Elsie456
    • By Elsie456 13th Jan 19, 2:15 PM
    • 7 Posts
    • 2 Thanks
    • #4
    • 13th Jan 19, 2:15 PM
    • #4
    • 13th Jan 19, 2:15 PM
    So is my appeal to POPLA good to go do you think? Do I need to include photos with my appeal?
    • The Deep
    • By The Deep 13th Jan 19, 2:32 PM
    • 12,439 Posts
    • 12,562 Thanks
    The Deep
    • #5
    • 13th Jan 19, 2:32 PM
    • #5
    • 13th Jan 19, 2:32 PM
    Complain to your MP as it is the will of Parliament that these scammers be put out of business.

    Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers.

    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

    Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

    The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

    Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Third Reading in late November, and, with a fair wind, will become Law next year.

    All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.
    You never know how far you can go until you go too far.
    • KeithP
    • By KeithP 13th Jan 19, 2:39 PM
    • 13,592 Posts
    • 14,815 Thanks
    • #6
    • 13th Jan 19, 2:39 PM
    • #6
    • 13th Jan 19, 2:39 PM
    Do I need to include photos with my appeal?
    Originally posted by Elsie456
    If you have photos that will enhance your case, then include them.

    Have you read any of the lengthy illustrated appeals linked from post #3 of the NEWBIES thread?
    There's one there running to twenty-nine pages.
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