Free Traffic Legal Advice

Hello Forum members,

I hope you are all well and thank you in advance for taking the time to read this post.

I have left it late posting this in this forum, as I was struggling to find the site, because I was browsing the FightBack Forum in the old Pepipoo forum/ platform. But thanks to fellow "cp7859" who kindly had pointed out to me the new site many months ago, I'm here on this new platform.

I am attaching a PCN from APCOA alleging Dropping off or picking up outside designated area at Luton Airport opposite Mid-Term Car Park, which it has a 15 min free drop off/ pick up.

The driver had a disabled passenger, whose details can be backed up by Blue Badge card and who was feeling sick (about to throw up) and really unwell exacerbated by sudden anxiety and panic attack requiring to get off the car immediately.

The car stopped for 8-10 seconds to assist the disabled passenger in such unforeseen circumstance and few seconds later the driver stopped by the traffic marshal (probably 5-10 meters away from the stopping point) to ask for guidance of the near toilet or assistance point for the disabled passenger.

Apparently this was a genuine emergency and unforeseen situation and the driver had no need to drop of the passenger there if it weren't for such situation, because the Mid-Term car park, which offers 15 minutes free for dropping off/ picking up passengers, was nearby (opposite as indicated in the PCN as well).

In addition to the 15 min free drop off/ pick up option, the car had also pre-paid parking at Luton Airport.

I am attaching the links to the redacted pictures (mindful that attaching pictures may use more storage than the links).

https://ibb.co/J3gvmVk
https://ibb.co/Wy15g3f

Few questions please.

1. What is/ are the line/s of defense in this case?
2. I believe the appeal must be submitted within 14 days of the date of issue of the notice in order to be with the option of paying the reduced rate if the appeal is rejected by APCOA. Is my assumption right please?
3. The list below outlines the options for the appeal. Which one needs to be selected please for the appeal considering that the system in place allows only one selection - ii, iv (although this seems strange as my interpretation of this is that APCOA claims that the Keeper and Driver are the same person - probably my interpretation is wrong, but I thought I'll just mention it here), v or vii (although v and vii may be used as mitigating circumstances)?

i. My vehicle was stolen
ii. The contravention did not occur
iii. The amount specified on the notice is incorrect
iv. I was not the Registered Keeper/Driver at the time of the contravention
v. Mitigating circumstances prevented me from parking correctly
vi. My vehicle has been cloned
vii. Other

Grateful for your views.

Kind regards,

Almep13

 

In civil law, the driver and the keeper are separate legal entities. APCOA have no idea who the driver is. The NtK invites you, the keeper, to pay the charge or pass it on to the driver and for you to identify him/her. They cannot infer that the keeper is also the driver. Only if the keeper admits to being the driver can they pursue you, as the driver.

APCOA are an unregulated private parking company with no authority to do anything other than make a request. This is a matter of civil law.

As explained above by @Nosey Parker, your appeal as the keeper and refusal to provide the identity of the driver will be the end of the matter because they cannot rely on PoFA to transfer liability from the driver to the keeper because PoFA does not apply on land covered by bylaws such as at airports and railway stations.

With the appeal shown above, you will get a response from APCOA telling you you are naughty for not obeying their silly/futile rules but they forgive you this time and don’t do it again.

I have personally appealed twice to APCOA for NtKs received for not paying the rip drop-off fee at Heathrow. Below is the appeal exactly as submitted each time.

Re PCN: XXXXXXXXX
VRM: nnNNnnn
Date of issue: DD mmm YYYY

I am the registered keeper. I refuse your invitation to identify the driver. As you cannot rely on PoFA to transfer liability from the driver to the keeper, APCOA have no hope at POPLA. You are urged to save us both a complete waste of time and cancel the PCN.

APCOA cannot hold the registered keeper liable. As a matter of fact and law, APCOA (as a longstanding BPA Parking operator) will be well aware that they cannot use the PoFA provisions because this is not 'relevant land'. If the Airport wanted to hold owners or keepers liable under Airport Byelaws, that would be within the landowner's gift and another matter entirely, but not only is that not pleaded, it is also not legally possible because APCOA is not the Airport owner and your 'parking charge' is not and never attempts to be a penalty. It is created for APCOA’s own profit (as opposed to a byelaws penalty that goes to the public purse) and APCOA has relied on contract law allegations of breach against the driver only. The registered keeper cannot be presumed to have been the driver, nor pursued under some twisted interpretation of the law of agency.

I uploaded the above as a pdf file and selected "other".

Hello,

I did submit the appeal and hopefully APCOA will see sense and cancel the PCN. With thanks to b789 and Nosy Parker and similar comments in other posts, the text below is what I included in the appeal.

"This Parking Charge Notice ("PCN") was issued to me as the registered keeper of the vehicle, and I am appealing as such. Luton Airport (including the drop-off zone and its surroundings) is not “relevant land” for the purposes of Schedule 4 of the Protection of Freedoms Act 2012 (as it is covered by airport bye-laws), so the operator cannot transfer liability to the keeper. Furthermore, even if (which is not the case) the drop off zone is relevant land, the PCN does not comply with the requirements of the POFA, Schedule 4, paragraph 9. As there is no legal requirement for the registered keeper to identify the driver, I will not be doing so.

APCOA cannot hold the registered keeper liable. As a matter of fact and law, APCOA (as a longstanding BPA Parking operator) will be well aware that they cannot use the PoFA provisions because this is not 'relevant land'. If the Airport wanted to hold owners or keepers liable under Airport Byelaws, that would be within the landowner's gift and another matter entirely, but not only is that not pleaded, it is also not legally possible because APCOA is not the Airport owner and your 'parking charge' is not and never attempts to be a penalty. It is created for APCOA’s own profit (as opposed to a byelaws penalty that goes to the public purse) and APCOA has relied on contract law allegations of breach against the driver only. The registered keeper cannot be presumed to have been the driver, nor pursued under some twisted interpretation of the law of agency.

In addition to the above, there are also mitigating circumstances according to the passenger, xxx, who is disabled as per Blue Badge pictures attached and needed an emergency stop due to feeling really sick and unwell despite being aware that the drop-off zone at Mid-Term Car Park was only metres away from the alleged location of contravention.

Considering the above I look forward to your confirmation that the charge has been cancelled. If you choose to decline this appeal, you must issue a POPLA code."

Thank you and regards,

Almep13

I will place odds that you will receive the the following response from APCOA:

Thank you for your letter received on dad mmm yyyy regarding the above Parking Charge Notice (PCN).

Thank you for your recent correspondence in relation to the above-mentioned Parking Charge Notice.

In your appeal you have explained that you are the registered keeper of the vehicle and declined the invitation to provide us with the full name and address of the driver.

On this occasion, we will waiver this PCN as a goodwill gesture, but must inform you that the terms and conditions in this location advise the driver that they must pay for each visit to the site. Signage is displayed at the approach to this drop off area, along the location and upon exit, advising all motorists that a payment to use the drop off area is required to be made online or by phone.

As stated above, the terms and conditions of using the drop-off zones are displayed by way of clear signage. It is the responsibility of the motorist to read and comply with the signage on site.

Yours sincerely,

Or at least it would have been if the OP hadn’t included the mitigation bit.

Not undermined. Just added unnecessary clutter.

There is no obligation to tell a private company the life story of any passenger

Does the appeal to POPLA needs to be more elaborate than the original to APCOA?

Elaborate? Not necessarily. More thorough? Probably. You needn't write chapter and verse, but it's wise to make the points as explicit as you can with POPLA, to leave the assessor with as little room for misinterpretation as possible.

I'd personally recommend structuring your POPLA appeal into headings (ideally numbered for ease). For example:

• APCOA have not shown that the appellant is the driver allegedly liable for the charge - here you can make clear that APCOA do not know who the driver of the vehicle was, no information has been provided to APCOA as to the identity of the driver, and that the assessor should therefore be considering whether you are liable for the charge as the registered keeper of the vehicle, which leads onto #2
• Luton Airport is not 'Relevant Land' for the purposes of Schedule 4 of the Protection of Freedoms Act - explain here that parking companies can only make use of PoFA to recover charges from the keeper on 'Relevant Land' - set out how PoFA defines relevant land, and how, by that definition, where the car was parked is not relevant land. As such, they cannot recover the charge from you as the keeper, and your appeal should be upheld
• APCOA have not issued a Notice to Keeper in accordance with Schedule 4 of the Protection of Freedoms Act - here you can explain that even if Luton Airport were relevant land, which is denied, APCOA still would not be able to recover the charges from you as the registered keeper, as they have not issued a notice that complies with the requirements of Paragraph 9 of PoFA. There's a fair argument that this point is moot - Schedule 4 of PoFA doesn't apply on non-relevant land, so they couldn't have issued a notice that did comply with paragraph 9 anyway, without misrepresenting their position. That said, I'd personally lean towards including it in the "even if..." format I suggested, just in case the assessor wrongly decided that the airport was relevant land

I wouldn't make any mention at all of the 'mitigating circumstances' you included in the initial appeal - don't include anything that could distract the assessor's attention away from the solid appeal points.

You should also appeal about the signage that breaches the BPA Code of Practice where it fails to bring to the attention of drivers about the charge for breach of contract until after the driver has no option but to have entered into the agreement by conduct.

Search for the BPA CoP online and have a look at the signage requirements .