The first simple question you need to ask, if APCOA are issuing a "Penalty Notice", under which authority are they acting. APCOA are not an authority. They are an unregulated private parking company.
If they are acting as an agent of the landowner (the TOC or Network Rail for example) they why is there no mention in the PN on whose behalf they are operating?
Please see this letter from the DfT from 2018 when POPLA queried whether they could adjudicate on PNs:
The last sentence of the third paragraph is the one that should be noted. Apart from the misuse of terminology in the DfT letter where it conflates the word "penalty" with "ticket", the DfT obviously expects parking infringements that would be covered under Bylaws 14(1) to (3) should be dealt with as civil matters, not prosecuted under bylaw 24(1).
The distinction is that there is absolutely nothing to stop a private company contracted by the landowner to issue PCNs under civil contract law. No one is arguing about that. The issue is that APCOA (and SABA) are issuing what they purport to be Penalty Notices under bylaw 24(1) which can be prosecuted as criminal matters in the magistrates court.
By issuing what they call a Penalty Notice, they are using language that is totally inappropriate and unlawful for a civil matter.
If the Penalty Notice were not fake, any revenue from the penalty would go to the landowner. APCOA are suggesting that they could bring a private criminal prosecution in the magistrates court to recover the penalty. How can they do that without disclosing who the landowner is that has given them the authority to a) issue a penalty notice in the first place and b) not disclose that the penalty payment is going into their own bank account and not that of the landowner.
In civil law, remedies are compensatory rather than punitive. Civil charges, such as those related to parking breaches, are intended to compensate for losses or to enforce compliance with contractual terms, not to punish or penalise in the same way as criminal fines. The term “penalty” implies punishment, usually in response to a legal offence. This punishment-oriented terminology is inconsistent with civil law principles, where charges must be proportionate and cannot be punitive.
Using “civil penalty” blurs the line between civil and criminal enforcement. It suggests that private operators have the power to impose punitive fines, akin to those imposed by statutory bodies, which they do not. In contract law, “penalties” are generally unenforceable because they are considered punitive and disproportionate. A charge that is punitive rather than compensatory can be struck down in civil courts as an unlawful penalty. Private operators, under civil law, cannot impose penalties—they can only seek reasonable charges linked to actual loss or deterrence.
Instead of “civil penalty,” the DfT should have used terms like “parking charge” or “civil charge.” These terms more accurately describe the nature of the charge in civil law, clarifying that it is intended as a deterrent or compensation, not a punishment. “Parking Charge Notice” (PCN) is the established terminology in the parking industry for civil charges imposed by private operators, and it avoids the punitive implications associated with “penalty.”
By using the term “civil penalty,” the DfT inadvertently suggests that these charges carry a statutory or punitive weight that they do not legally have. This may lead the public to perceive these charges as quasi-criminal fines, which they are not. The DfT’s language has obviously been misinterpreted by APCOA/SABA as a license to impose punitive fines, when their legal authority only extends to civil enforcement within the bounds of proportionality.
The DfT’s use of “civil penalty” is, in effect, an oxymoron and a misuse of legal terminology. In civil law, the correct terms are “parking charge” or “civil charge,” which accurately describe a compensatory measure rather than a punitive penalty. This distinction should have been made to prevent confusion and ensure that parking operators, POPLA and the public understand that these charges are civil in nature, without the punitive or statutory implications associated with true “penalties.”
The DfT specifically state that the ability to render a charge under byelaw 14(4)(i) is distinct from the general enforcement power in byelaw 24(1), under which a person can be prosecuted in the Magistrates Courts. The only logical interpretation of that is infringements of Bylaw 14 should be dealt with as civil matters by way of a PCN and not a Penalty Notice.
Notwithstanding this, there was a case recently with APCOA where they had issued a "Penalty Notice" under railway bylaws and it went to POPLA. They were put to strict proof that they were permitted to issue Penalty Notices at the location. It came to light after reviewing the contract, even though heavily redacted, there was no authority for APCAO to issue Penalty Notices, only Parking Charge Notices.
