Author Topic: APCOA - PCN - Luton Airport - Dropping off outside designated area - Feb 2024  (Read 562 times)

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The Rookie

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APCOA has responded to the appeal by rejecting and providing the POPLA verification number.
The penalty for going 'off script'.

APCOA recognise the standard appeal, and know they are wasting their time by taking it further, by adding irrelevant flutter you gave them hope you'd mess up at POPLA so now you have the hassle of submitting a much more complex POPLA appeal.

Look at other recent POPLA appeals about PoFA and you'll see the level of detail required, you need one based around 'relevant land' so a train station or airport, their won't be many as the correct first appeal is so effective.

Post here for review BEFORE sending this time.
There are motorists who have been scammed and those who are yet to be scammed!
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b789

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You should also point out in your POPLA appeal that the operator has been mendacious in its rejection where it states: “...no stopping is allowed at any time to drop off, pick up or for any other reason.” Go and search for the airport byelaws where you can evidence that there is no such stipulation about “stopping for any other reason”.

As already mentioned (and ignored), mention of any mitigating circumstances is futile and has obviously caused you more work to get this cancelled.

H C Andersen

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I suggest you start where the assessor will start: is the DRIVER liable for a parking charge?

Sorry to step out of line, but because 'PoFA does not apply on land covered by bylaws such as at airports and railway stations' does not mean you start with KEEPER liability, because this misses out a step and it's the assessor's first question i.e. is the driver liable for a parking charge?

Is the driver liable for a parking charge?
If the land is not 'relevant land' then there cannot be any driver liability for a parking charge arising under a breach of a presumed contract, this follows because land which is not 'relevant land' must fall into one of these prescribed categories, namely:
(a)a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);

(b)a parking place which is provided or controlled by a traffic authority;

(c)any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

In the cases of (a) and (b) the enforcement function falls to an enforcement authority, which cannot be a private company as here, and their remedy is a 'penalty charge' not 'parking charge'.
In the case of (c), the remedy for an offence cannot be a parking charge but may  be a penalty or prosecution.

Therefore, if the land is not 'relevant land' there cannot be any driver liability for a 'parking charge' of the type at issue here and therefore the creditor's case falls.

Then your argument about the status of the land.....

By all means then follow with 'if the assessor believes that the land is 'relevant land' and that the DRIVER might be liable for the parking charge, then the issue for the assessor is whether the creditor has complied with the strict provisions of ****** PoFA and is thereby permitted to hold the keeper liable. However, given that the Notice to Keeper ******** it must surely be the case that driver liability cannot be transferred to the keeper and therefore, irrespective of the driver's liability, I invite the assessor to instruct the creditor to cease taking further action against me as KEEPER. If they believe that their case is sound, in other words that the land is 'relevant land' and that the driver breached a contract term which gave rise to their liability to a parking charge then I am neutral as to whether and how they pursue the driver who, I repeat, was not me.

Others will have views, but it must be the case that if whether the land is 'relevant land' is at issue then the argument must start with the creditor's right to hold the driver liable in the first instance and not leap to whether the keeper is liable.

There will be views, I'm sure!

almep13

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Good evening @H C Andersen, @b789, @The Rookie,

Thank you for you valuable opinions, I appreciate your time and knowledge and apologies for late response.

Your comments have really been eye opening for me on this subject. I'm glad I did approach the forum rather than take the easy out, but painful, option of paying the requested charge. I'm feeling more confident.

I'll be doing my research based on your suggestions and draft the appeal to POPLA to share it here before submitting to avoid adding unnecessary details and capturing the real points that can sway the assessor.

Thank you once again to you all for your time and have a good night.

Kind Regards,

Almep13

b789

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Personal experience and assisting well over 50 other successful APCOA appeals at Heathrow, I can assure you that if the basic appeal that was originally recommended had been used, APCOA would have cancelled the PCN.

APCOA do not take single PCN cases to court. Even if they win at POPLA, they never go beyond the DRA phase. Hence the claim that they are benign.

POPLA assessors are not legal gurus. They are at best paralegals. They make mistakes in interpreting the law.

The best approach to a successful POPLA appeal is to assume it is the tea-boy assessing your appeal. You have to lead them carefully through your appeal points.

Whilst H C Andersen approaches this with an exclusively legal mindset, my worry would be that making the core issue about whether the driver is liable or not distracts from the very simple fact that, irrespective of who was driving, the keeper simply cannot be liable.

The original appeal wording as was suggested, has worked for me, over 50 times and many more times for others who I know assisting others. Not having to go through the POPLA process, where we have seen them completely misinterpret PoFA more than a few times and are continually having to “retrain” their assessors in the correlation of PoFA and “non-relevant land, is an added hurdle that was not necessary as APCOA failed to address or even mention the core point about keeper liability.

The NtK says the driver is liable. APCOA do not know the identity of the driver. The keeper is invited to pay the charge or identify the driver and pass it on to them. There is no legal obligation for the keeper to identify the driver and no assumptions or inference can be made that the keeper was the driver.

Whether or not the driver could be liable for an invoice from a private parking company on land that is under statutory control is not the point. The keeper has received the invoice and APCOA cannot rely on any interpretation of the law, PoFA or otherwise, to hold the keeper liable for the alleged debt.

At the end of the day, whether you don’t bother with POPLA or if you are unsuccessful, it will not matter. APCOA will not take a single PCN to court. Have fun learning the process and let’s see what you come up with for your POPLA appeal.

One other point, the POPLA code actually lasts for 32 days even though they tell you it’s 28.
« Last Edit: March 22, 2024, 01:02:59 am by b789 »

almep13

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Good morning all and thank you @b789 for your comments, I appreciate it.

My guess regarding APCOA's rejection is that they are basing their argument on the "stopping on red route" and not considered at all the POFA argument. The mitigating circumstances were included just to add to the main argument - not POFA compliance - that there was no benefit for stopping where the car is alleged to have stopped, because the free Mid-Term Car Park was only few meters away.

Anyway, this is a mute point now, because the appeal was rejected. Let's hope a better result at POPLA. At this stage there is no turning back from fighting it all the way.

Thank you and have a good day.

Kind regards,

Almep13

H C Andersen

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I understand b789's comments, but the first appeal to APCOA boat has sailed, the OP is at POPLA.

Any sight of assessors' reasons will reveal that their first step is always to address the issue of whether there is driver liability, not whether there's consequential keeper liability. My approach simply mirrors their MO and delivers the arguments sequentially as required.

If as b789 suggests their competence is in question, then as it's known that they have an (real or virtual) aide memoir to assist them then why tax them by addressing issues out of sequence i.e. as they get to question 1 in their aide memoir then so should an appeal.
« Last Edit: March 22, 2024, 02:03:12 pm by H C Andersen »

almep13

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Good evening all,

As per your suggestions I was researching the topics of POFA and "relevant land" concept under the airport byelaws.

Am I right in believing that APCOA hasn't even mentioned the POFA in either the NtK or the rejection of appeal and as I such I should raise a complaint to BPA for not complying with their code of practice?

Another question please regarding the draft appeal to POPLA. Which option is easier for forum members to comment, if it's i) typed in here; or ii) saved as pdf with a link added in the message?

Thank you for your views.

Kind regards,

Almep13

DWMB2

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Which option is easier for forum members to comment, if it's i) typed in here; or ii) saved as pdf with a link added in the message?
If it's fairly long, my personal view is that a PDF is easier to read. If you do put it in here, ensure you format it and don't paste a wall of text.

Am I right in believing that APCOA hasn't even mentioned the POFA in either the NtK or the rejection of appeal and as I such I should raise a complaint to BPA for not complying with their code of practice?
I'd focus on your POPLA appeal, complaints are a distraction for now. But, if you do end up complaining at some point, which section of the Code of Practice are you alleging they've failed to comply with?

almep13

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Hi DWMB2,

Thank you for the prompt response. I shall add a link to the pdf file.

In regard to the complaint, it's not my priority right now, but the two points would: i) keeper liability infers use of POFA, which it is not applicable in "relevant land" covered by byelaws; ii) accessing DVLA's database using parking enforcement aspect in order to issue NtK while the alleged infringement is for "no stopping".

Thanks and regards,

Almep13

b789

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APCOA do not mention PoFA in their NtK because it is irrelevant and they are not relying on it. There is no requirement for any PPC to rely on PoFA. If they want to rely on PoFA, they have to follow the requirements of PoFA. In this case, they simply cannot rely on it whether they want to or not because they know the airport is not relevant land.

APCOA know that they are not relying on PoFA and therefore know that they cannot transfer liability from the driver to the keeper unless the keeper dobs themselves in it by admitting to being the driver, deliberately or inadvertently.

You only need to lead the POPLA assessor by showing that you, as the keeper, cannot be liable for the charge, irrespective of whether the driver is liable or not. You cannot be liable because there is nothing in civil law that allows for that transfer of liability, except for PoFA, which APCOA are not relying on, because they cannot, whether they wanted to or not.

As to whether you should post it here or as a pdf attachment, I would suggest you post it within a thread, suitably formatted so we can read it. If you put it as a pdf, that means that we have to download your pdf and refer to it separately and then delete it from our own computer. Maybe post the pdf file as an series of images (using Imgur with the appropriate links so that they appear in the thread and don't open in separate windows.

almep13

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@b 789,

thank you for your comments. I realised the point of PoFA after I posted my comments that APCOA are not relying on it rather it's the Keeper who relies on PoFA. As you rightly say, the PPC cannot use the PoFA. But this shows my learning curve on the subject and the fact that probably it was past my bed time... ;)

I intend of adding the draft as link as in the earlier posting on this topic. I hope this is alright for the forum members.

Thank you and regards,

Almep13

almep13

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Good evening dear Forum Members,

Apologies for the hiatus on posting the draft for the POPLA appeal. Have done the research and as The Rookie mentioned in the early post there don't seem to be to many of such appeals because either the cases have, thankfully, successfully been appealed with the PPC before reaching POPLA or the deadlines for POPLA appeals have been missed.

I have to be upfront about plagiarism  ;)  by thanking you all for your views and hopefully I have done credit to copy + paste features by not messing up the points. But hopefully, you'd be able to point out to me if I have messed up such points.

Apologies in advance for the quality of the pictures, because these are taken from the screen of my laptop. I'm just cautious that the pdf may divulge personal info even if I have attempted to remove personal details from the file. If the quality is not good then I'll have to find another way to present the draft here. Please let me know.

Thank you in advance for your views. I'm planning of posting no later than by Tuesday, 16 Apr considering that the date of the rejection letter was 20 March.

https://ibb.co/qjxTkr0
https://ibb.co/z5v6dQ7

Thank you for your assistance.

Kind regards,

Almep13

b789

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In 1.1 you incorrectly state "If the land is not 'relevant land' then there cannot be any driver liability for a parking charge...". I think you mean that there cannot be any keeper liability.

I found an old but successful POLA appeal that worked and includes a few extra points APCOA will have to rebut:

POPLA Ref ...................
APCOA Parking PCN no .......................

A Notice to Keeper (NtK) was issued on 14th February 2024 and received by me, the registered keeper of ........ for an alleged contravention of ‘Dropping off or picking up outside of designated areas’ at Luton Airport. 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) Registered keeper cannot be liable
2) Amount demanded is a penalty
3) Not relevant Land under PoFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
4) 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)
5) Misleading and unclear signage
6) No landowner contract nor legal standing to form contracts or charge drivers
7) Photo evidence appears doctored
8) No consideration Period Given (Clause #13 BPA Code of Practice)

1) 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 the '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.

2) Amount demanded is a penalty 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 not 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.

3) 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 keeper. 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."

4) 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 3 above.

5) The alleged contravention, according to APCOA, is in 'Dropping off or picking up outside of designated areas'. 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."

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 issue parking charges, 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 APCOAParking 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 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.

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).

8) As per section 13 of the BPA Code of Practice: "You should allow the driver a reasonable 'consideration 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'. 90 seconds, I would argue does not breach a fair 'consideration 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.
« Last Edit: April 13, 2024, 12:18:41 am by b789 »

almep13

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Good evening b789,

Thank you for your prompt response and the detailed grounds for appeal. I appreciate it.

Have a good night and regards,

Almep13