**APPEAL WON** London Luton Airport APCOA PCN

[yankius]

Hi all and especially Mistery1,

On a certain date and time a car stopped for less than 5 seconds, a person disembarked and the car made a u-turn right in front of the entry to the Mid term car park.
A well known smart car with huge periscope was sitting in ambush and as a result the registered keep received a letter with some photos and some demands. From the quick prowl through the forums the registered keeper understands the process nowadays is to:
- appeal to APCOA
- on dismissal of the appeal to request POPLA reference
- Appeal with POPLA

Would appreciate help with proper wording of the appeal and then the POPLA appeal. Attached are the sanitized copies of the front and back of the letter to the registered keeper.
I managed to get a copy of the Bylaw for LLA, the link has changed, but quick google search points to the new location.

Registered keeper Thanks you in advance

[ostell]

Re: London Luton Airport APCOA PCN

Write to them confirming that you are indeed the keeper and query why the notice is entitled "parking charge notice" when the vehicle did not in fact park. You tell them you have as requested, passed the notice to the driver at the time, whom you have no legal requirement to name and you will not be doing so. It is up to them whether they respond or not.
As they have chosen not to rely on the Protection of Freedom Act 2012 Schedule 4 to transfer liability to the keeper, indeed they cannot do that as the land is subject to Byelaws and therefore not relevant land for the purpose of the Act there can be no keeper liability.
As the keeper you now expect confirmation from them that any charge against you is removed and all personal details removed from their records.

[yankius]

Re: London Luton Airport APCOA PCN

Write to them confirming that you are indeed the keeper and query why the notice is entitled "parking charge notice" when the vehicle did not in fact park. You tell them you have as requested, passed the notice to the driver at the time, whom you have no legal requirement to name and you will not be doing so. It is up to them whether they respond or not.
As they have chosen not to rely on the Protection of Freedom Act 2012 Schedule 4 to transfer liability to the keeper, indeed they cannot do that as the land is subject to Byelaws and therefore not relevant land for the purpose of the Act there can be no keeper liability.
As the keeper you now expect confirmation from them that any charge against you is removed and all personal details removed from their records.

Thank you very much. I have used a combination of your reply and a recent M1 advise. Can share by post or private message

[yankius]

Re: London Luton Airport APCOA PCN

Recieved reply from APCOA who state they will reply in up to 35 days.

[yankius]

Re: London Luton Airport APCOA PCN

Almost thought they may have given up. Registered keeper received reply from which it appears they disregarded the content of the previous e-mail from the registered keeper.
It appears there are a lot of inaccuracies in the text as the car was not parked, for example and the terms and conditions I believe are not set by Luton Airport but by APCOA themselves.
I would appreciate help with POPLA appeal as I got the ref number.
Sanitized photos attached
Kind Regards,

[ostell]

Re: London Luton Airport APCOA PCN

Stopping is not parking. Your appeal to POPLA will state this this is land subject to Byelaws and as the driver has not been identified then there can be no keeper liability. Wait for other to help.

[yankius]

Re: London Luton Airport APCOA PCN

Thanks Ostell, will wait.
Just to confirm, the POPLA code is valid for 28 days, as stated in the APCOA letter?

[charitynjw]

Re: London Luton Airport APCOA PCN

http://www.lutontoday.co.uk/news/bus...port-1-7301891

[ostell]

Re: London Luton Airport APCOA PCN

So post up your POPLA appeal for critique before you send. The major point will, of course, be that this land is the subject of byelaws and therefore there can be no keeper liability.

[Guest]

Re: London Luton Airport APCOA PCN

It seems that the main point of the appeal is the difference between parking & stopping, am I right?

Equally you could have been fined based on the facts as given for driving up to the airport!

[ostell]

Re: London Luton Airport APCOA PCN

No, the main point of the appeal is that the land is subject to byelaws and therefore it is not relevant land for the purpose of the Protection of Freedoms Act Schedule 4 to be able to hold the keeper of the vehicle liable for any alleged parking misdemeanours.

Then continue on with stopping is not parking, simply setting down or unloading.

Here's POFA for you to look at.

[yankius]

Re: London Luton Airport APCOA PCN

Thanks everyone.
I concluded the main point will be POFA, relevant land, designatet airport and Road legislation on designated land, where public has access
Other points to consider:
-Terms and conditions being set on a pole on the roundabout where everyone is squeezing from three lanes into one
- inaccuracies in description of the contravention
- time grace if indeed they claim I am parked for 2 secs
other points

I am off on holiday from said Luton Airport and will try to take some pictures especially of the T&C sign.
I believe I have 28 days, so will post my draft on return in a weeks time.
Have good time everyone.

[ostell]

Re: London Luton Airport APCOA PCN

The driver was stationary for ....

Check the time you POPLA code was issued. There's a checker somewhere on MSE forums. Not unknown forhtem to cheat with the issue date.

[yankius]

Re: London Luton Airport APCOA PCN

Numbering is all over the place once pasted in the forum.
Good evening all, following is my POPLA appeal that was reworded after helpfull comment form Ostell. Please, review and advise if good to go. Thanks in advance.
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Dear POPLA,
On the 9th October 2017, APCOA Parking (UK) Ltd issued a parking charge notice LT00073419 highlighting that the vehicle with Registration number KR16 YUY of which I am the Registered Keeper allegedly contravened “DROPPING OFF OR PICKING OUTSIDE DESIGNATED AREAS” at Luton Airport Central Terminal Area. The alleged contravention is stated to be in “breach of the Terms and Conditions of use of the airport road where signs are clearly displayed throughout the are showing these terms and conditions.”
As the registered keeper I wish to refute these charges on the following grounds:

1. Airport bylaws do not apply to any road to which the public have access, as they are subject to road traffic enactments
2. APCOA Parking (UK) Ltd does not comply with POFA 2012
3. Alleged place of the alleged contravention is not relevant land
4. APCOA Parking Ltd. did not put due consideration to my representation to them as the Registered keeper and did not comply with Section 22 of the BPA Code of Practice;
5. APCOA Parking (UK) Ltd does not have any proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
6. Signage (as evidenced in the two letters from APCOA and as witnessed on recent travel from Luton Airport) does not comply with:
   1. TSRGD 2016 - The Traffic Signs Regulations and General Directions 2016 and associated Traffic signs manual
   2. the BPA Code of Practice, the signs appear to be not prominent, clear or legible while driving to form any contract with a driver;
   
   
7. APCOA Parking LTD not registered with the ICO for ANPR activities and is not compliant with the Data Protection Act
8. The authenticity of the photo evidence
9. Alleged breach of the Terms and Conditions
10. False misrepresentation of authority;
11. Previous decisions of POPLA Assessors.

1. Airport bylaws do not apply to any road to which the public have access, as they are subject to road traffic enactments

As outlined within the Airport Act 1986 airport byelaws do not apply to any road to which the public have access, as they are subject to road traffic enactments. This is clearly stated within sub-paragraph 65 (1) of the 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.

Furthermore, this argument is supported under part 3 of the London Luton Airport byelaws. Whereby the document outlined that byelaws only apply to parts of the airport to which the road traffic enactments do not apply.

1. If APCOA wants 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 car park where the parking event took place (POFA Paragraph 7), the Notice to Keeper must meet the strict requirements and timetables set out in the Schedule (in particular paragraph 9).

The Notice to Keeper does not warn the keeper that, if after a period of 28 days, APCOA Parking (UK) Ltd has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a Notice to Keeper must adhere to the following points:

The notice must be given by— warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and(ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Upon reviewing the Notice to Keeper, APCOA Parking (UK) Ltd have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f). Evidence of the Notice to keeper is attached as evidence. Consequently, the appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.
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.
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."

I would suggest that APCOA address all future correspondence to pursue compensation to the Driver at the time of the alleged contravention and to stop contacting me, the Registered Keeper.

1. Airport land is not 'relevant land' as it is already covered by statutory byelaws and is specifically excluded from 'keeper liability' sub-section under Schedule 4 of the Protection of Freedoms Act 2012. Therefore as 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 and/or other statutory instruments.

As POPLA assessor Steve Macallan found in case 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.’

1. Following review of APCOA Parking (UK) Ltd.’s rejection of my initial appeal, it appears that APCOA Parking (UK) Ltd disregarded any arguments that I, as a Registered keeper, put in front of them as my representation and blankly issued a standard reply with additional demands from the Registered keeper, whereas such demands are not lawful and can be classed as harassment. This contravenes point 22.1 as the appeal has not been dealt with fairly.

Furthermore, nowhere in their two letters they claim Registered Keepers liability under the POFA 2012. I urge APCOA to prove to POPLA compliance with the BPA code of conduct on the fact that they should carefully consider any representations in appeal

1. 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 (London Luton Airport Ltd).

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 occupier (London Luton Airport Operations Ltd, a subsidiary of a Aena Internacional and Aerofi SāRL that in has concession of the said airport from London Luton Airport Ltd which in turn is wholly owned by Luton Borough Council, which in turn, as a public company is partially owned by me as a British citizen and tax payer) 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 APCOA Parking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.
Further the signage shown in the letters from APCOA is prohibitive and as one POPLA assessor found it can not be used to form a contract as there is no offer.

1. Signage (as evidenced in the two letters from APCOA and as witnessed on recent travel from Luton Airport) does not comply with:
   1. TSRGD 2016 - The Traffic Signs Regulations and General Directions 2016 and associated Traffic signs manual. The sign provided in the second letter form APCOA Ltd has no border, mismatched x-heights fonts, unregulated colours. I urge APCOA to prove to POPLA compliance with the statutory requirements such as the Traffic Signs Regulations and General Directions 2016; to provide copy of Department for Transport authorization of the sign shown or compliance with the Traffic Sign Regulations and General Directions 2016.
   2. the BPA Code of Practice, the signs appear to be not prominent, clear or legible while driving to form any contract with a driver;
   
   

On my recent travel form Luton Airport I noticed that the signs are too high to be normally read, form the evidence provided by APCOA Ltd it is clear that too much information is provided to be read in a passing vehicle especially if someone is a driver and needs to also pay attention at the traffic around the main roundabout.

1. APCOA Parking LTD not registered with the ICO for ANPR activities and is not compliant with the Data Protection Act

By using the ANPR APCOA Ltd is in breach of several guidance’s and requirements of the ICO and the Data Protection Act 1998 (“DPA”). I therefore demand that APCOA Ltd provides and proves to POPLA compliance with the DAP, that the signage is showing the required warning that ANPR is in use and in what circumstances the DVLA will be contacted (this is not evident in the signage provided in the second PACOA letter).
Furthermore it is clear that APCOA Ltd. does not comply with the DAP as images of the passenger of the aforementioned vehicle have been shared with the Registered Keeper.

1. In addition the above points I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates.

I would challenge APCOA Parking (UK) Ltd 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 Parking (UK) Ltd that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such a way (there are much more sophisticated ways of hardcoding photo data). It is very likely that the coordinates are of the camera rather than the vehicle shown in the photograph.
Nevertheless, I challenge APCOA LTD to prove to POPLA that the CCTV and ANPR equipment that was specifically used for the alleged contravention are:

• Fit for purpose: approved technical design to comply with the relevant requirements and Acts of Parliament;
• Calibrated: calibration certificates for all components to be made available to POPLA to confirm they are current and relevant;
• Operator competency: Operator is competent and trained to use the equipment and also that the operator on the day was competent and converse with the Data Protection Act.
• The CCTV vehicle used (I as a registered keeper found this through research and noticed when travelling form the Airport) has a type approval and safety certification to be legally placed on a public road including certificates, MOT and other relevant documentation to show compliance with legal requirements after the modifications (installation of a high periscope type structure to mount a camera). Also a proof that the vehicle is exempt from the very same “terms and conditions” for parking outside designated areas, as numerous travels to the airport as passenger show the vehicle parked on public road with no warning or safety barriers.

In summary, these points demonstrate the claim by APCOA Parking (UK) Ltd is invalid and that my representation should lead to POPLA cancelling the APCOA Ltd demand to me, the Registered Keeper. This arguments were used in similar circumstances where the Assessor came to the conclusion that APCOA Ltd claim is void and upheld the Registered Keeper representation and cancel this PCN.


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[yankius]

Re: London Luton Airport APCOA PCN

Hi all, I will have to post this soon, are there any glaring inaccuracies?