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#Post#: 18040--------------------------------------------------
Re: APCOA - PCN - Luton Airport - Dropping off outside
designated area - Feb 2024
DIR By: almep13
Date: March 22, 2024, 3:59 am
---------------------------------------------------------
Good morning all and thank you [member=26]b789[/member] 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
#Post#: 18050--------------------------------------------------
Re: APCOA - PCN - Luton Airport - Dropping off outside
designated area - Feb 2024
DIR By: H C Andersen
Date: March 22, 2024, 5:25 am
---------------------------------------------------------
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.
#Post#: 18476--------------------------------------------------
Re: APCOA - PCN - Luton Airport - Dropping off outside
designated area - Feb 2024
DIR By: almep13
Date: March 27, 2024, 6:27 pm
---------------------------------------------------------
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
#Post#: 18478--------------------------------------------------
Re: APCOA - PCN - Luton Airport - Dropping off outside
designated area - Feb 2024
DIR By: DWMB2
Date: March 27, 2024, 6:31 pm
---------------------------------------------------------
--- Quote from: almep13 link ---
> 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?
--- End Quote ---
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.
--- Quote from: almep13 link ---
>
> 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?
>
--- End Quote ---
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?
#Post#: 18479--------------------------------------------------
Re: APCOA - PCN - Luton Airport - Dropping off outside
designated area - Feb 2024
DIR By: almep13
Date: March 27, 2024, 6:50 pm
---------------------------------------------------------
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
#Post#: 18480--------------------------------------------------
Re: APCOA - PCN - Luton Airport - Dropping off outside
designated area - Feb 2024
DIR By: b789
Date: March 27, 2024, 7:04 pm
---------------------------------------------------------
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.
#Post#: 18505--------------------------------------------------
Re: APCOA - PCN - Luton Airport - Dropping off outside
designated area - Feb 2024
DIR By: almep13
Date: March 28, 2024, 9:36 am
---------------------------------------------------------
@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
#Post#: 19575--------------------------------------------------
Re: APCOA - PCN - Luton Airport - Dropping off outside
designated area - Feb 2024
DIR By: almep13
Date: April 12, 2024, 12:10 pm
---------------------------------------------------------
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.
HTML https://ibb.co/qjxTkr0
HTML https://ibb.co/z5v6dQ7
Thank you for your assistance.
Kind regards,
Almep13
#Post#: 19580--------------------------------------------------
Re: APCOA - PCN - Luton Airport - Dropping off outside
designated area - Feb 2024
DIR By: b789
Date: April 12, 2024, 1:15 pm
---------------------------------------------------------
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.
#Post#: 19589--------------------------------------------------
Re: APCOA - PCN - Luton Airport - Dropping off outside
designated area - Feb 2024
DIR By: almep13
Date: April 12, 2024, 3:56 pm
---------------------------------------------------------
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
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