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  • FIRST POST
    • alan6566
    • By alan6566 14th Mar 17, 9:02 PM
    • 10Posts
    • 3Thanks
    alan6566
    Recived a reply from appeal with Apcoa
    • #1
    • 14th Mar 17, 9:02 PM
    Recived a reply from appeal with Apcoa 14th Mar 17 at 9:02 PM
    Hi All,

    Looking for some help with an appeal with Apcoa. I followed the advice from the newbies thread and sent the following:

    Re: PCN No. ***
    Reg. ***

    I challenge this 'PCN' as keeper of the car.

    I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers.

    Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA 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. Please provide evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.

    There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

    Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.

    I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days. I have kept proof of submission of this appeal and look forward to your reply.

    Yours faithfully,
    I have since had a 4 page reply back from them (which I will upload when I can scan it) saying that my appeal has been unsuccessful and that i can follow an appeal with POPLA which i intend to do, but I am looking for some help with this.

    I have done some research in the form of reading part of the PoFA and part of the Railway bye-law. I have also read this thread which is a similar situation to my self (same car park as well).

    forums.moneysavingexpert.com/showthread.php?t=5399313

    Please could you advice on my next step.
Page 1
    • Redx
    • By Redx 14th Mar 17, 9:07 PM
    • 14,786 Posts
    • 18,597 Thanks
    Redx
    • #2
    • 14th Mar 17, 9:07 PM
    • #2
    • 14th Mar 17, 9:07 PM
    http://forums.moneysavingexpert.com/showthread.php?t=5399313

    no need to show us their drivel

    just follow the same advice as in the other thread seeing as its the same car park, same PPC etc

    and follow the POPLA advice in the NEWBIES sticky thread too

    also bear in mind this is not a hosting site so you cannot upload files here

    so your next step is to draft a popla appeal and upload it to popla within the 28 days appeal period
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Coupon-mad
    • By Coupon-mad 15th Mar 17, 2:13 PM
    • 48,281 Posts
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    Coupon-mad
    • #3
    • 15th Mar 17, 2:13 PM
    • #3
    • 15th Mar 17, 2:13 PM
    Also search the forum for APCOA POPLA byelaws and you will find loads more, all won.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • alan6566
    • By alan6566 28th Mar 17, 8:30 PM
    • 10 Posts
    • 3 Thanks
    alan6566
    • #4
    • 28th Mar 17, 8:30 PM
    POPLA Letter
    • #4
    • 28th Mar 17, 8:30 PM
    So after a couple of weeks doing research and deciding what to write, I have come up with the following. Please let me know if anything should be changed or amended. Much appreciated

    Dear Sirs,

    Re: PCN No. xxxx

    I am the registered keeper and this is my appeal, based on the points below.


    1) APCOA not using POFA 2012!
    2) Railway Land Is Not ‘Relevant Land’
    3) Amount demanded is a penalty
    4) No keeper liability
    5) The charge is not a genuine pre-estimate of loss
    6) Non-compliant signage, forming no contract with driver
    7) Unreasonable/Unfair Terms
    8) Lack of standing / authority from landowner!



    1) From their rejection of my initial appeal, it appears that APCOA are attempting to claim the charge is liable to them under!railway byelaws. I reject this and put them strictly to proof on which!byelaw!they claim is broken, and in any case, why this would result in an obligation to pay APCOA.


    2) Railway Land Is Not ‘Relevant Land’



    Under Schedule 4 of PoFA 2012, section 1, it states that:!

    “(1) This schedule applies where –!
    (a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Following from this, in section 3, PoFA 2012 states that: “(1) In this schedule “relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”. And that: “(3) For the purposes of sub-paragraph (1) (c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question”.



    Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA 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 ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by byelaws. Railway land, being governed by Byelaws, is not relevant land and Keeper Liability under POFA does not apply, and therefore!APCOA!are unable to pursue the registered keeper in lieu of the driver’s details.!



    3) 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.

    4) No keeper liability


    Having re-checked the date on the Notice to Keeper issued by!APCOA, the driver is not known in this case. POFA 2012 Schedule 4, Paragraph 9, requires that, in order to make use of the provision to pursue the registered keeper,!APCOA!must send a Notice to Keeper within 14 days of the alleged contravention. The alleged contravention happened at Bristol Parkway railway!station!on 19th February 2016. The Notice to Keeper was issued on 14th March 2016 and therefore presumed to have arrived on 16th March 2016, which is 26 days after the alleged contravention.!APCOA!Parking (UK) Ltd has therefore failed to issue a Notice to Keeper in the required timeframe, and therefore the registered keeper cannot be held liable in this instance for the alleged debt of the driver.!

    5) This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.
    The recent Beavis case was specifically based around getting maximum turnover of vehicles in an otherwise free car park. In a station car park, where you pay for the amount of time you stay, there is no need for vehicle turnover, no "promise to leave" after a certain time. The Supreme Court judges even made this exact point in the Beavis case. Therefore Beavis does not apply in this instance.!

    6) Non-compliant signage, forming no contract with driver



    The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required. The BPA Code of Practice states under appendix B, that entrance signage: “must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”



    For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park, and furthermore a Notice is not imported into the contract unless brought home “so prominently that the party ‘must’ have known of it” and agreed terms. I contend that this is not the case, and question the fact that the driver saw any sign specifying the amount of the ‘fine’ that would be due, and so there was no consideration or acceptance and no contract agreed between the parties. The sign upon entering Bristol Parkway railway!station!car park does not even mention the amount of the parking charge at all, which is in breach of 2(3) of schedule 4 of the POFA and contrary to the BPA code of practice. Upon inspection of another sign elsewhere in the car park, the terms of the ‘fine’ are in very small typeface which therefore means that this sign is not clear or prominent enough to form any contract with a driver before parking. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.!

    7) The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:

    '18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.!

    Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

    The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

    8) Lack of standing / authority from landowner!


    Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. Section 7.1 states:

    “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.!

    Section 7.3 states: “The written authorisation must also set out:!

    a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined!

    b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

    c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement!

    d. who has the responsibility for putting up and maintaining signs!

    e. the definition of the services provided by each party to the agreement.''

    I do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a TOC gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay!APCOA!(not that a keeper can be liable anyway on non-relevant land and!APCOA!cannot enforce byelaws themselves, only the!Train!Operating Company (TOC) or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court).!APCOA!have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that!APCOA!are entitled to pursue these charges in their own right.

    I require!APCOA!to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put!APCOA!to strict proof of compliance with all of the above requirements.!



    I therefore respectfully request that my appeal is upheld and the charge is dismissed.



    Yours sincerely,


    • Coupon-mad
    • By Coupon-mad 28th Mar 17, 10:29 PM
    • 48,281 Posts
    • 61,763 Thanks
    Coupon-mad
    • #5
    • 28th Mar 17, 10:29 PM
    • #5
    • 28th Mar 17, 10:29 PM
    Remove #5 and #7 altogether (pre-Beavis case from pre-2015, too old, no chance) and you might be closer to the finished product.

    Replace #6 with the template 'unclear signs' POPLA appeal point linked in post #3 of the NEWBIES thread as it is longer and probably drives a PPC mad; they can't be bothered to read it.

    And replace the gap you'll have left by removing #5 from your draft, with the template from the NEWBIES thread which is about 'the appellant not being shown to be the individual liable' (change the wording to point out that they can only hold the OWNER liable, under Railway byelaws, and the keeper of a car cannot be assumed to be the owner any more than they can be assumed to be the driver).
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • alan6566
    • By alan6566 29th Mar 17, 5:57 PM
    • 10 Posts
    • 3 Thanks
    alan6566
    • #6
    • 29th Mar 17, 5:57 PM
    • #6
    • 29th Mar 17, 5:57 PM
    Thanks for responding, I have made some of the amendments you have mentioned but can't seem to find the one you are talking about in the below?

    And replace the gap you'll have left by removing #5 from your draft, with the template from the NEWBIES thread which is about 'the appellant not being shown to be the individual liable' (change the wording to point out that they can only hold the OWNER liable, under Railway byelaws, and the keeper of a car cannot be assumed to be the owner any more than they can be assumed to be the driver).
    • The Deep
    • By The Deep 29th Mar 17, 6:04 PM
    • 6,697 Posts
    • 5,695 Thanks
    The Deep
    • #7
    • 29th Mar 17, 6:04 PM
    • #7
    • 29th Mar 17, 6:04 PM
    no need to show us their drivel

    I would be interested to read what they say, I am fighting an Apcoa byelaws case at the moment. Four pages on a byelaws appeal must contain a lot of interesting lies.
    You never know how far you can go until you go too far.
    • Coupon-mad
    • By Coupon-mad 29th Mar 17, 7:10 PM
    • 48,281 Posts
    • 61,763 Thanks
    Coupon-mad
    • #8
    • 29th Mar 17, 7:10 PM
    • #8
    • 29th Mar 17, 7:10 PM
    Thanks for responding, I have made some of the amendments you have mentioned but can't seem to find the one you are talking about in the below?
    Originally posted by alan6566
    The template that has those words 'the appellant not being shown to be the individual liable' in its title, one of only a few templates for POPLA in post #3 of the NEWBIES thread. You will also find it on every other APCOA thread, and it is recommended you search for 'APCOA POPLA'.

    You could even find that POPLA appeal point by searching for 'appellant individual POPLA' (and change the search to advanced 'show posts' not show threads).

    Despite a poster missing the point last week, it is a GOOD THING for all of us to advise people how to search a forum well - it is a useful skill for any research about anything, to know how to search forums and search Google using 2 or 3 keywords, not asking for a link. People who drive me mad are those who think t'internet only works if you type in a full question or put in the full ''www.'' webpage address! (I am not saying that's you, just keen that everyone learns that being told to 'search' IS the best advice on here in many cases).
    Last edited by Coupon-mad; 29-03-2017 at 7:20 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • alan6566
    • By alan6566 30th Mar 17, 4:48 PM
    • 10 Posts
    • 3 Thanks
    alan6566
    • #9
    • 30th Mar 17, 4:48 PM
    • #9
    • 30th Mar 17, 4:48 PM
    Thank you once again Coupon-man for you quick and helpful answer.

    I have taken a look at the post you have suggested and have added the new section 5 in.
    Is this now ready to be sent to Popla?



    5) Being the registered keeper of the vehicle I wish to appeal the recent parking charge from Apcoa,. The charge is levied despite the driver not being identified.

    Not being the OWNER of the vehicle, under the Railway byelaws the keeper of the car cannot be assumed to be the OWNER anymore than they can be assumed the drive.



    • alan6566
    • By alan6566 30th Mar 17, 4:50 PM
    • 10 Posts
    • 3 Thanks
    alan6566
    The above is the section that I have added in. I did try and past it all in but I was having issues with Url links being in there. So I just pasted the section that i have added.

    Thanks
    • Coupon-mad
    • By Coupon-mad 30th Mar 17, 11:45 PM
    • 48,281 Posts
    • 61,763 Thanks
    Coupon-mad
    Yep, looking like another winner!
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • alan6566
    • By alan6566 2nd Apr 17, 12:43 PM
    • 10 Posts
    • 3 Thanks
    alan6566
    I have just submitted my appeal. Guess it's just a waiting game now.

    How long does it normally take to hear back from them?

    Thanks again for the help!!
    • Umkomaas
    • By Umkomaas 2nd Apr 17, 2:56 PM
    • 13,620 Posts
    • 21,360 Thanks
    Umkomaas
    I have just submitted my appeal. Guess it's just a waiting game now.

    How long does it normally take to hear back from them?

    Thanks again for the help!!
    Originally posted by alan6566
    4 to 5 weeks if APCOA contest it, but they normally throw their hand in and withdraw when they see a forum-led appeal which they know they will be going nowhere with, and it will cost them a POPLA fee if they proceed.

    In which case - a few days.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • billythefish1
    • By billythefish1 10th Apr 17, 12:48 PM
    • 18 Posts
    • 5 Thanks
    billythefish1
    Quick question: In terms of appeal most of the arguments seem to relate to inadequate signage and T&Cs but can people advise what is deemed inadequate signage?
    • Umkomaas
    • By Umkomaas 10th Apr 17, 1:06 PM
    • 13,620 Posts
    • 21,360 Thanks
    Umkomaas
    Quick question: In terms of appeal most of the arguments seem to relate to inadequate signage and T&Cs but can people advise what is deemed inadequate signage?
    Originally posted by billythefish1
    I've just replied on your own thread. Best not to drift onto other people's threads with your own questions.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • alan6566
    • By alan6566 10th Apr 17, 1:51 PM
    • 10 Posts
    • 3 Thanks
    alan6566
    I have just received a reply from POPLA saying that APCOA has uploaded evidence. Should I reply to this or should I just leave it?
    • Coupon-mad
    • By Coupon-mad 10th Apr 17, 10:22 PM
    • 48,281 Posts
    • 61,763 Thanks
    Coupon-mad
    You should email POPLA back and tell them to adjourn because APCOA have not provided the evidence to you. When you get the evidence, of course you rebut it (as covered on loads of threads about POPLA rebuttal stage).
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • alan6566
    • By alan6566 13th Apr 17, 9:27 AM
    • 10 Posts
    • 3 Thanks
    alan6566
    The Evidence has been provided to me via the Portal, where i am able to login into and view it. Should I still email POPLA to adjourn?

    Also the evidence they have submitted is the same as what they sent me when I appealed plus us a paragraph on the portal.
    • DoaM
    • By DoaM 13th Apr 17, 10:33 AM
    • 2,753 Posts
    • 2,774 Thanks
    DoaM
    Does new POPLA allow PPCs to provide their evidence pack only via the portal? Or does the PPC still have to send a copy separately to the appellant?
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • Coupon-mad
    • By Coupon-mad 13th Apr 17, 5:55 PM
    • 48,281 Posts
    • 61,763 Thanks
    Coupon-mad
    The Evidence has been provided to me via the Portal, where i am able to login into and view it. Should I still email POPLA to adjourn?

    Also the evidence they have submitted is the same as what they sent me when I appealed plus us a paragraph on the portal.
    Originally posted by alan6566
    So, has the POPLA Portal been updated so that it shows more than just a few paragraphs (as it used to) and actually shows you the attachments, landowner contract, pages of bumf and photos etc.?

    If so, that's new.

    If it's only their statement and no attachments then that isn't the evidence pack and you should receive it separately and will need to ask POPLA to adjourn.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

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