APCOA Birmingham Airport - Drop off in layby PCN Options

[Figaro]

Evening all

I am the keeper of a company car and have today been forwarded a PCN from APCOA for an alleged breach of terms and conditions (dropping off or picking up outside designated areas) at Birmingham airport.

Date of offence - Mid March 2018
Date of PCN forwarded to me by my company HR / fleet lady - end of April 2018
Deliberately being a bit vague and i have one key question below that i'm thinking won't require accurate dates

APCOA contacted lease company first as a charge from them has also been sent to my company
Lease company nominated the company i work for and APCOA sent PCN to my company
Fleet lady has simply forwarded PCN to me and not replied to APCOA - she advises i pay the £100 fine but I don't think so!

I am aware of the bye laws situation with BHX airport and the likely success of a POPLA appeal on this point alone but in order to get a POPLA appeal number i need to appeal to APCOA first and have that rejected.

Onto my question. - I have genuine, but tenuous, appeal circumstances that are most likely going to be rejected so do i try that first, or just go in guns blazing with the MSE forum blue text template as my initial appeal to APCOA? Put another way will my POPLA appeal be compromised in any way if my initial appeal direct to APCOA doesn't include the bye laws defence that i will no doubt end up using?

Many thanks

Figaro

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[SchoolRunMum]

Fleet lady has simply forwarded PCN to me and not replied to APCOA - she advises i pay the £100 fine but I don't think so!

Haha, she is mad! A lessee appellant cannot lose v APCOA. Silly woman.

I have genuine, but tenuous, appeal circumstances that are most likely going to be rejected so do i try that first, or just go in guns blazing with the MSE forum blue text template as my initial appeal to APCOA?

Just use the template to get the POPLA code!

Put another way will my POPLA appeal be compromised in any way if my initial appeal direct to APCOA doesn't include the bye laws defence that i will no doubt end up using?

Never. APCOA always fold when they see the long B;ham Airport POPLA appeals,

[ostell]

Check with your fleet lady if the documents required by POFA in 14 (2) (a) were also enclosed with the notice to hirer. Probably not. This means that APCOA have not complied with POFA and therefore there can be no keeper liability. You can reply to them as the keeper. Check the timings. It may just be on the cusp of out of time. They hafve to send the NTH out within 21 days of being informed by the hire company, at the outside this would be 49 days.

This post has been edited by ostell: Wed, 2 May 2018 - 05:53

[Figaro]

Thank you all so far for the replies. I will check the paperwork that my fleet lady was sent when i get it all tomorrow.

In the meanwhile i'm going to struggle with my APCOA appeal with this is the response on their website...

"Sorry, your records are currently unavailable. However, we advise you to still make payment by selecting the payment value as detailed on your Charge Notice in the “AMOUNT TO PAY” menu, on the right."

You couldn't make it up!

[nosferatu1001]

As long as you can still make an appeal, send the TEMPLATE unaltered from MSE NEWBIES forum, in blue. Dont post it here for us to check.

[Figaro]

OK, MSE newbies appeal sent to APCOA

I've just been going further into this...

Alleged offence date - 14 March 2018
Date of issue of notice to Lease Company - 6 April 2018
Date of issue to my company - 26 April 2018

It says on the MSE forum - If they are a firm which alleges 'keeper liability' under the POFA 2012 (which they don't have to!) then a postal PCN must arrive by day 14 if there was no windscreen ticket.

As there was no windscreen ticket and the initial notice is dated beyond 14 days of the offence (never mind delivered) am I right in assuming there can be no keeper liability?
Am I also right in having to be careful that the registered keeper may actually be someone else and the initial notice could have been sent there first?
How can I personally find out who is on the V5C as the registered keeper to check if the notice arrived by day 14?

Finally, is all of the keeper liability business just an aside given that BHX has byelaws and therefore isn't relevant land?

Thanks, Figaro.

[Figaro]

I've just been reading POFA properly and whilst it's hard to understand and follow for a chump like me I think the questions i wrote above probably don't apply but maybe the documentation sent to my company should have been titled as a notice to hirer rather than another notice to keeper. Does this however mean that i should refer to myself as the hirer too, or the keeper? I am in effect the keeper of a car my company hires for me.

It's all so complicated, and in the end the 'relevant land' is the one that will surely mean the PCN is not enforceable regardless of the keeper business?
When i get my POPLA code i will definitely need some help on what is and isn't appropriate for my appeal points.

Figaro

[SchoolRunMum]

I've just been reading POFA properly and whilst it's hard to understand and follow for a chump like me I think the questions i wrote above probably don't apply but maybe the documentation sent to my company should have been titled as a notice to hirer rather than another notice to keeper. Does this however mean that i should refer to myself as the hirer too, or the keeper? I am in effect the keeper of a car my company hires for me.

Once they had the hirer details, if they wanted to hold the hirer liable, APCOA would have to send a NTH with the documents set out in para 13/14 of the POFA Schedule 4, as attachments. APCOA will not have included any attachments. No PPCs get this right.

You are the hirer/lessee and day to day keeper (all terms that are safe to use at POPLA stage). As long as the driver is not implied or admitted at POPLA stage, APCOA will throw in the towel at that stage. Or they'd lose, because their charge is one that can only hold a known driver liable.

When i get my POPLA code i will definitely need some help on what is and isn't appropriate for my appeal points.

No you really won't!

You can simply copy ANY other 2017/2018 POPLA Appeal about the same place/APCOA, that you see on here or on MSE forum. Easiest way to find them all with one single search, is to Google POPLA APCOA BHX airport and you will see a pattern in the last year's efforts, all won.

[The Rookie]

The signage at BHX is woeful, truly awful, there is no way it can be used to hold a driver to a contract, in addition byelaws apply anyway. APCOA know this and never put up a fight.

[ostell]

But put up your appeal for critique before you send. It would be a shame to lose by some mistake when it is eminently winnable.

[Figaro]

ok, APCOA appeal rejected as expected, response below. I'm collating my POPLA appeal now from various replies seen elsewhere as suggested. Will post here for a quick check before submitting to POPLA.

Thank you for your appeal received DATE against the Parking Charge Notice issued by us to you on DATE. Having carefully considered the evidence provided by you, we must advise your appeal has been unsuccessful on this occasion.

Please note that the above notice has been issued correctly due to the fact that this layby is strictly for Ibis/Etap hotel drop off’ s only (hotel guests). After viewing the CCTV footage it is clear that the passenger did not enter the hotel nor exit the hotel doors and therefore this is a breach of the terms and conditions for Birmingham Airport. Signage within this layby clearly states a notice will be issued for failure to comply with the terms and conditions, and also indicate this is for ‘hotel drop offs only’. No proof of a hotel booking has been provided on appeal. Please be aware that this notice has been issued as a breach of the terms and conditions has occurred. This lay by contains 3 signs all stating the restrictions in place and that this area is for hotel drop offs only.

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:

1. Pay the Parking Charge Notice at the discounted price of £50 within 14 days. Please note that after this time the
Parking Charge Notice will increase to £100.
You can pay by the following methods;
By Post Send a cheque or postal order crossed and made payable to APCOA Parking (UK) Ltd to:
APCOA PARKING,
PO BOX 222,
LOWTON WAY,
HELLABY
SHEFFIELD
S98 1NX
https://pcnpayments.apcoa.co.uk/pcnonline/index.php

2. You have now reached the end of our internal appeals procedure. You now have the option to make an appeal to
POPLA - The Independant Appeals Service. You can do this within 28 days of this letter by completing the online
appeal form at https://www.popla.co.uk quoting the verification reference number xxxxxxxxx. Please be advised that
if you opt for independent arbitration of your case, the Parking Charge Notice will be considered at the full amount of
£100. If you require a hard copy of the POPLA form please contact our customer service centre on 0345 301 1151
where one of our customer service agents will be happy to assist you.
By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org/) provides an
alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen
to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to
POPLA, as explained above.

3. If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may
proceed with Court action against you.

Yours Faithfully
APCOA Appeals Department

[ostell]

OK, to hold you /your company liable they have to conform to the requirements of POFA. You've read it. What is applicable now is paragraphs 13 and 14, but 14 is what you are interested in. The 14 days period is also relevant if you had the original PCN to the hire company to check this out, which you probably don't.

The parking companies usual fail on paragraph 14 (2) (a). Did your fleet lady actually get the documents with the notice to hirer/keeper ? If not than you can point out to POPLA that the required documents have not been received and therefore the requirements of POFA to hold the keeper liable have not been met and therefore there can be no keeper liability and the appeal must be accepted.

Does your fleet lady actually know about POFA, especially paragraphs 13 & 14 ? Now is your chance to educate her so that she can reject any further parking charges as soon as they are received.

This post has been edited by ostell: Sat, 26 May 2018 - 10:54

[Figaro]

Hello again everyone.

Having done a lot of reading and copying and pasting here is my draft POPLA appeal.
What does anyone think please? Thansk in advance for any comments and guidance.
Deadline for submitting is by the end of this week so I better get on with it really.


1) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
2) Airport Act 1986
3) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
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) No landowner contract nor legal standing to form contracts or charge drivers
6) Photo evidence appears doctored


1) 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 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.”


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, the 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 the PCN issued so require them to evidence their compliance to POPLA.

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.


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 Notice to Keeper. 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 me 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 4 above.


5) 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 scrutinizes 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.


6) 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 right 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).


I therefore request that POPLA uphold my appeal and cancel this PCN.

[Figaro]

Sorry to nag everyone but I need to submit my appeal to POPLA very soon and was hoping for some experienced eyes to have a quick sanity check on my points of appeal and for any final advice?

Thanks

Figaro

[nosferatu1001]

Will win on not relevant land, assuming you have proven this with evidence.

[Figaro]

Thank you, by evidence I assume you mean the bylaws themselves for BHX Airport? I have a copy of these and will submit as supporting evidence. I will also try and get the airport act too.

Thanks for your support. I'm hoping for a non contested win but can't be complacent so have to go the full distance on this POPLA appeal prep.

Figaro

[nosferatu1001]

Yes, thats evidence plus maybe google maps showing the land in question is part of the airport.

[Figaro]

Good advice thanks.

[Figaro]

Dear Figaro


Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference xxxxxxx.

APCOA Parking have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.


Yours sincerely
POPLA Team


RESULT!!! - Never had a win on this forum before so i'll need some advice about moving this to the completed case forum

Thanks for the sanity checks and help. Long live PepiPoo and down with the cheating scumbags at APCOA. That said, i can now park in that layby with impunity, provided i'm happy to go through a lengthy paperwork exercise each time!!!

[Redivi]

Could even complain to the DVLA every time APCOA applies for your details without reasonable cause