Advice on New Rules/APCOA still using 2002?

bazster

GD, if this is another case of APCOA abandoning keeper liability then the POFA timeframes are irrelevant.

Pammieh

Hi again
I’m afraid this has taken a back seat for the last few weeks following the sudden bereavement of my mum on 10th Dec.

My first concern is that I may have missed the POPLA deadline. I received the rejection letter with my code from APCOA on the 12th Dec – but dated 9th. Do the 28 days start from RECEIPT of the letter (which means – if I post a letter today - that I could be within the time-frame?)

If this seems acceptable, I will prepare my draft later this morning and post it here for approval (if possible).

FYI – I sent my appeal on 14th Nov with no further correspondence until 19th Dec (I understood they needed to have confirmed receipt of my appeal within 14 days?)
Their response:

Offence Location: First Great Western Station

Parking Charge Notice: xxxx

Thank you for your recent letter with regard to the above-mentioned PCN.

We have considered fully your explanation of the circumstances and have to inform you that the PCN has been up held. The photographs taken by the Parking Attendant show that your vehicle was parked in a restricted area this is indicated by the yellow road markings. Unfortunately we are unable to justify cancellation on the grounds outlined in your appeal as your vehicle is parked in breach of the rules and regulations of the car park. By entering the car park you agree to abide by the terms and conditions of the car park. For the reasons above the notice was issued correctly and still stands.

Payment of £85 ….
1) Pay the PCN …
2) Make an appeal to POPLA Code No. xxxx


Typing this up I notice there is no mention of ‘driver’ or ‘keeper’ or who has liability.
It implies I was driving but I have never given the suggestion of any driver.

It would be great if someone could come back to reassure me by confirming that I should be ok re POPLA appeal time-frames.
Thanks so much
Pammieh

hoohoo

You may be over the deadline so:

1. Send in your POPLA appeal today, by website, not email
2. Start it with
I am unsure of the POPLA timescales. If I am just out of time then please take mitigating circumstances into consideration as my mother died on the 10th dec.
3. Once you have submitted it, contact Richard Reeve, POPLA Tribunal Manager, on 0207 520 7202 and ask him to allow your appeal on compassionate grounds. Explain that APCOA have missed every deadline so you should be allowed latitude due to the death of you mother.

Sorry about your Mother - hope you get it cancelled.

Pammieh

Thanks hoohoo.

I have to say that my heart seems to have gone out of this a bit. In the greater scheme of things this is nothing ... still I suppose we don't give in to 'the man'!

Coupon-mad

Post it anyway! So sorry to hear about your dear Mum. x

Pammieh

Hi
Thanks Coupon-mad.

I am getting myself really panicky now because I must just do something and I know it’s my only chance to appeal. I really thought that APCOA would cancel the PCN without giving me a POPLA code but, as they haven’t given up, I’ve lost confidence.

I’ve tried a draft below. I have cut and pasted and tweaked as recommended on one thread, so I hope it looks ok. Thanks to Guys Dad, Coupon-mad, H087, hoohoo et al – how do guys you keep doing this? Medals all round!

Appeal re: PCN xxxx
I am the registered Keeper of the above vehicle and, having applied to APCOA to have this PCN cancelled but having had my appeal rejected, I am now appealing to you. I maintain that I am not liable for this parking charge on the following grounds and would ask that all points are considered.


1. Neither the parking company nor their client has proved that they have planning consent to charge motorists for any alleged contravention.

2. No valid contract with landowner

3. The signage at the car park is not enforceable.

4. The amount demanded is not a Genuine Pre-estimate of loss.

5. The time limits on the Notification to the Keeper were not adhered to under POFA 2012 regulations

The details regarding these points:

1. No right to charge motorists
(This doesn’t seem quite right…should I include it – with these slight amendments - for parking on double yellow lines?)

Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and penalty fees, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions, restrictions and chargeable regime in this car park.

2. No valid contract with landowner
(This still applies for a station car park? Is it ok for me to quote exactly?)

It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.
It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory
is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company.

3. The signage at the car park is not enforceable

I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's first Annual POPLA Report 2013:

''Typically the motorist may have stopped on a double yellow line...of course, on the public highway this is generally permitted, … It is therefore very important that any prohibition is clearly marked”

which indicates that stopping briefly on yellow lines is deemed acceptable.

(However, the driver did leave the car briefly to lift the passenger’s luggage to the platform, so should I include this? Time first seen: 13:18, time of issue: 13:19 – driver waited while ticket was printed! I know it’s not important to them, but the passenger was claustrophobic so wasn’t able to take her own luggage in the lift and, had the driver parked in the ‘main’ car park, it would have been a much further walk to the platform from the stairs)

However, it is accepted that on private land the TRSGD2002 does not apply as such, and so I believe the double yellow lines have no significance in this car park.
I have visited the site and there appear to be no further signs regarding penalties for parking in this area, and any core parking terms that the parking company are relying upon were too small for any driver read or understand when driving into the car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the size of the font used to detail penalty charges to determine the ease with which these terms could be read so that, on entering the car park, a driver still in a car could see and read them before deciding to drive in. I believe the operator failed to inform the driver sufficiently to allege any breach occurred.
The signs failed to properly and clearly warn/inform the driver of the terms and restrictions in this car park and so failed to comply with the BPA Code of Practice appendix B. Painted lines do not in and of themselves provide the necessary warning/information and are only an enforceable restriction on the Public Highway. No contract was therefore formed with this driver as there was no consideration, offer nor acceptance of terms.

4. The amount demanded is not a Genuine Pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms.
The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.


5. The time limits on the Notification to the Keeper were not adhered to under POFA 2012

As the registered keeper of this vehicle, I received a notice relating to this incident on 31st October (letter dated 30th October) some 63 days after the event. This does not comply with the schedules of POFA 2012.
The operator quoted the earlier 2002 regulations on their original request, but under these rules the operator must give proof of who the driver was, and they have not named the driver.
On these grounds, keeper liability does not apply and I understand that this means that I have no legal responsibility to settle the operator’s request.


This concludes my appeal

I’m sorry it’s so long … and even more sorry if it’s rubbish!
Many thanks in anticipation of your help.

Coupon-mad

That is not rubbish, you have almost done it! Very good draft.

I would get rid of this (below) about planning consent (not appropriate in a station car park normally as they've been there donkeys years and are owned by the Train Operators in most cases:

[STRIKE]1. No right to charge motorists [/STRIKE]
(This doesn’t seem quite right…should I include it
NOPE, change it to:

1. The car park is a railway station site, which I believe is owned by the Train Operating Company and is subject to their own statutory byelaws. As such, POFA 2012 and 'keeper liability' does not apply at this particular car park. APCOA will need to show otherwise if they are to rebut this point, and as the driver has not been identified, as registered keeper I am not liable in law.

Point #2 is fine and is relevant.

I would swap points 3 and 4 over so that 'no genuine pre-estimate of loss' is presented higher up in the appeal (you could even make it the first one, if you want to swap it with the one I just wrote above and then re-number it quickly.

And I would add to the signage/double yellows point that 'However, the driver did leave the car briefly to lift the passenger’s luggage to the platform therefore was involved in unloading heavy items which on real (Council) double yellows, as the Chief Adjudicator stated, is an exempt and allowed activity. I suggest APCOA do not know the double yellow line rules they are ostensibly trying to replicate and as such, to suggest their 'double yellows' have a different meaning than is defined under the TRSGD2002 is an unfair term in law. A driver cannot possibly be expected to know what made-up rules apply to these 'double yellows' if APCOA do not place clear 'no stopping zone'/clearway or red route versions of signage at that place. Especially as it is a train station where passengers will often have luggage to carry to/from the platform or wish to board/alight a vehicle, all of which is known to be exempt under the accepted UK meaning of 'double yellows'.

Send it online to POPLA today and hope it gets considered anyway. If not, no worries, you've set out your case which would very likely win in court (APCOA do not do court so you've covered yourself every which way and might just need to ignore some debt collector letters if POPLA won't consider it if it's late).

Pammieh

hi Coupon-mad
Thank you for saying so, though it's all down to you guys and yet, for all my reading of threads, I still didn't pick up on the station byelaws/POFA 2012 contradiction. If there are different byelaws, would that be why they quoted the 2002 originally? (though why do they not just quote the byelaws that apply - or am I being naive?)

BTW Just to let you know I haven't been ignoring you this afternoon...I made the amendments you suggested and submitted it but - for some reason - I couldn't login on my smart phone to post on the forum. At first it wouldn't recognise my password, then when I tried to request a new password it couldn't recognise my email address, and then it took me to a page to create a message for the webmaster - waiting for him to come back to me.
Luckily, back here at home there's no problem!

So thank you for all your help...I really hope it doesn't go to court...but I guess I just hold my nerve.

I'll keep you posted - very best regards
Pammieh

Coupon-mad

Pammieh wrote: »

hi Coupon-mad
Thank you for saying so, though it's all down to you guys and yet, for all my reading of threads, I still didn't pick up on the station byelaws/POFA 2012 contradiction. If there are different byelaws, would that be why they quoted the 2002 originally? (though why do they not just quote the byelaws that apply - or am I being naive?)

Their 'tickets' neither fall under POFA2012 nor the byelaws, that's why they can't quote either of them!

Pammieh

Just to keep you up-to-date - POPLA have accepted my appeal though it was delayed (I attached the death certificate to be on the safe side) and they are considering it on 17th Feb.
Will let you know what happens...