Birmingham Airport signage and drop off appeal

Skywalker2

Hi,
I am a Newbie who previously closed down a Parking Eye Notice to Keeper and read through a fair amount of this forum before responding to APCOA following a PCN indicating a 40 second pick up on a service road at Birmingham Airport.

As the signage had not been obvious (despite years of using this airHiport), a return to the site was made, verifying that there was one overhead sign stating "parking restricted to designated areas" and two roadside lamp post signs indicating "Restricted ZONE No stopping" then in smaller print, "at any time to drop off or pick up." Parking in front of the terminals was stopped some years ago following the Glasgow Airport terrorist attack, it seemed reasonable to assume the restricted zone referred to this area, about 100 metres from the "parking" notice.

The signs are mounted on roadside lamp posts with the base at about two metres from the ground. An ergonomics and human factors expert assures me that a driver passing at normal speeds with other vehicles, would be unable to absorb more than the first two lines, particularly since the signs are not in the direct line of sight.

The PCN response from the Keeper to APCOA indicated these points and that there was no notice at the point where the "parking" occurred. Shortly after, a second PCN was received, covering a 40 seconds off road stop to photograph the offending signs during the return visit! This PCN was also appealed, however the Keeper has just received a rejection of the first appeal, quoting a POPLA reference number but not responding to the specific points raised.
The Keeper has not specified the driver but is now becoming concerned at the ongoing escalation and time taken to deal with the case. My question is, how long does the POPLA appeal take, is it entirely paper based and is there any chance of success?

I should perhaps add that neither PCN mentioned POFA 2012 and that the first PCN was received after 14 days due to a residential move. The second PCN was issued 17 days after the event! Based on the PCN numbering, they are claiming over £10,000 a week from motorists during winter months!

Very much appreciate the time people are taking to fight this appalling abuse of parking contracts!

kirkbyinfurnesslad_2

If you follow our advice you will WIN @ Popla,
follow this: https://forums.moneysavingexpert.com/discussion/4816822

Dont bother discussing what happened on the day its irrelevent, !!, Post up your popla draft when you have completed it before you send it of

Its entireley paper based, very high rate of success and about 5/6 weeks

Coupon-mad

Is there any chance of success? LOL, we win every time, 100% success rate and well over 100 cases won on 'no GPEOL' as a main appeal point (all acronyms are explained in the linked thread, and post #3 there gives 'How to win at POPLA' as a hyperlink). You need to find a specific Airport example in the hyperlink - as there is a good point about 'not relevant land' which kicks any keeper liability into touch unless they can show it is...

Skywalker2

Following the good advice received and reading more widely I have drafted the following POPLA Appeal and would appreciate any comments!
POPLA Appeal
1). The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor. The operator is required to specifically "identify" the creditor not simply name them on it. This would require words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made. APCOA have failed to do this and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

2). The BPA code of practice also contains the following:
28.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.
28.2 Entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of. Entrance signs must meet minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance. Industry-accepted sign designs and guidance on how to use the signs are in Appendix B.
28.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450 mm.
28.4 If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.
Appendix A indicates
The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. Any text on the sign not intended to be read from a moving vehicle can be of a much smaller size.

3) The signs provided by APCOA are mounted on lamp posts, above head height and outside of the line of sight (see above). Even if a driver looked up, at a speed of 25mph (11metres/sec) a driver would be unable to read the sign before passing it. Under BPA guidelines above, the Operator has not complied with 28.2,3 and 4 or Appendix A and so cannot consider the driver to have been properly informed.

4). The amount of the charge proposed is disproportionate to the loss incurred by APCOA Parking Ltd and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because APCOA Parking Ltd have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee). They contend that the BPA guidelines approve any amount up to £100 (Section 19.1) without justification, however £100 for 40 seconds (as demonstrated by their camera) cannot be considered proportionate. They have also offered to half the charge if no appeal is made to POPLA, a further indication that this charge does not reflect an actual loss on their part.

5)The operator states in their response to me “red routes are in operation around the airport site in order to maintain the safety of our passengers, visitors and staff.” This would appear to indicate they have a proprietary interest in the land and that a safety case has required the creation of red routes. Since all roads within the airport, including service roads are marked as red, the primary aim would seem to ensure continuous movement into revenue bearing areas rather than safety. The lack of signs where vehicles would stop, or in a position where drivers would look, is a further indication that the positioning of their cameras reflects maximising revenue rather than safety.

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 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.

7) I contend that APCOA Parking Ltd are 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.

8). I believe there is no contract with the landowner/occupier that entitles APCOA to levy these charges and therefore 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.

9). 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.

10) 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 bylaw.

Coupon-mad

You have the winning points but I would add the recommended paragraph about no stopping zones (have a look at the example VCS Airport threads, because I recall a newer version of a POPLA appeal against VCS at an Airport which you could change to APCOA. Or search this forum for 'stopping' as a keyword).

I am sure APCOA don't cite ANY of paragraph 9, not just the creditor part! So you should state that and point out this means there's no keeper liability as the NTK was not properly 'given'. If you can't find a POPLA example in the examples which has that wording (I have written quite a few!) then search the parking forum for 'given Matthew Shaw' as keywords.

This would appear to indicate they have a proprietary interest in the land

No they haven't. And that conflicts with point #6.

And your 'loss' paragraph needs to say 'not a genuine pre-estimate of loss' in it. LOADs of examples of that wording in the How to Win at POPLA link in the NEWBIES thread.

HO87

Sitting here in the wee hours I have remodelled your appeal. There is little point in reciting chunks of the CoP so I have edited these out.

1. Protection of Freedoms Act 2012

1. The appellant contends that Notice to Keeper served by the Operator does not comply with para. 9(2)(h) Schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor. The operator is required to specifically "identify" the creditor not simply name them on it. This would require words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made. APCOA have failed to do so and have failed to fulfil the requirements of the Act to allow them to attempt recovery of any charge from the keeper.

2. Further, the appellant contends that in any event the Act is not applicable in that the location of the incident giving rise to the charge the Operator is seeking to enforce is not “relevant land” within the meaning provided by para 3 Schedule 4. The entire Airport and its environs are subject of statutory control by virtue of the Birmingham Airport Byelaws 2004. The appellant specifically draws the assessor's attention to the map annexed to the Byelaws an inspection of which it makes clear that the location concerned is within the Byelaw area.

3. Further it is contended that it is trite law that the act of allowing passengers to board or alight from a vehicle does not amount to parking but, rather, is defined as "stopping". As a consequence of this and the above, the appellant contends that as the Act is not applicable and that the operator is therefore unable to pursue the Keeper in respect of this alleged debt.

2. Signage

1. The BPA AOS Code of Practice sets out in detail how the operator should lay out their signs. The appellant contends that the operator has failed in all respects to comply with the requirements of the Code.

2. The appellant contends that such signage as has been deployed by the operator in terms of the type face and size used, its location- particularly being fixed above head height on lamp standards at the roadside - render them unreadable.

3. Even if a driver was to look up, were he travelling at a speed of just 25mph (11metres/sec), he would be unable to read the sign before passing it. The Operator has therefore failed to comply with sections 28.2, 28.3 and 28.4 of Appendix A of the Code and so cannot consider the driver to have been properly informed and cannot therefore seek to rely upon those signs as the basis of any contract.

3. Parking Charge

1. It is the appellant's case that the charge being sought is disproportionate to any loss the operator may have incurred and is therefore punitive, contravening the Unfair Contract Terms Act 1977. It is also the appellant's case that the charge being sought does not represent a genuine pre-estimate of loss incurred by the operator and is therefore a penalty. It is therefore requested that the assessor put the operator to strict proof of their assertion that the charge does reflect their losses and that it is not a penalty.

2. The operator asserts that “...red routes are in operation around the airport site in order to maintain the safety of our passengers, visitors and staff.” This would appear to indicate they have a proprietary interest in the land and that a safety case has required the creation of red routes. Since all roads within the airport, including service roads are marked as red, the primary aim would seem to ensure continuous movement into revenue bearing areas rather than safety. The lack of signs where vehicles would stop, or in a position where drivers would look, is a further indication that the positioning of their cameras reflects maximising revenue rather than safety.

3. The appellant contends that the operator does not have a proprietary interest in the land or lacks sufficient proprietary interest to either offer a contract in their own name nor to seek to enforce their purported interests or those of their principals or that of the beneficial owners or occupiers. As a consequence they have no legal standing to allege or pursue a trespass or other loss. The operator should therefore be put to strict proof of their interest in the land and their legal authority to act.

4. Further, the appellant contends that as an agent of the landowner the operator's signs do not assist them in the offer or formation of any contract without any consideration capable of being offered. The case of VCS -v-HMRC 2012 is the binding decision in the Upper Tax Chamber (a superior court of record) provides compelling statements of fact about this sort of business model.

5. Even if a basic contract is produced and makes mention of the issue of PCNs, the lack of ownership or a formal assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the operator 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.

And the link for the Byelaws - which you should attach to your appeal - Click Here (Opens as a pdf)

bod1467

UCTA is 1977 not 1997, but otherwise a very nice appeal.

Coupon-mad

Nice one HO87, staying up till silly o'clock like me and writing people's POPLA appeals!

Here is the 'no stopping zones' wording if the OP wants to add it to the signage paragraphs:



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.''

If APCOA intend this apparently private road to be treated by drivers as if it was an urban clearway (the effect being no stopping at all) then the signs and terms used must be compliant with the Traffic Signs Regulations and General Directions (TSRGD) 2002 or they will be misleading and confusing to drivers. The signs at this location do not comply with road traffic regulations or their permitted variations and as such are misleading.

Repeater signs in this area are minimal and located parallel to the road, therefore not facing the oncoming traffic and are not positioned where the driver would have seen them. Therefore they were unable to be seen by the driver and certainly could not be read without stopping. It will NOT be enough evidence for APCOA to show one picture of ONE sign because I am contending that there are no traffic-facing 'repeater signs' as would be required in a moving traffic situation.

Skywalker2

Gosh! I really can't thank everyone enough - I thought I was the only one to spend hours poring over a sticky keyboard!
I will use the revised version by HO87 - it does read better and will add the section on "stopping" proposed by Coupon-mad, then put up the final version. Is there any advantage in delaying the appeal until near the end of the 28 days or should it go off as soon as finished?

Once again guys, you are doing a terrific job, keep up the good work!

Redx

just ensure its all sorted and then submit it (after its checked on here)

there is nothing to be gained by delaying it except a delay on your appeal date hearing , and they will be in march now (6 or 7 weeks after submission)

Skywalker2

Hi All, here is my amalgamation of the comments (as best as i can understand them!) for submission to POPLA. Once again thanks to all concerned and I will certainly be avoiding further PCNs at BHX, I would not have appealed if the driver had seen and understood the signs in the first place and would have accepted a charge as a warning - if it was reasonable!

POPLA APPEAL (including ref no and map of Birmingham Airport Bylaw Annex)
1. Protection of Freedoms Act 2012

i. The appellant contends that Notice to Keeper served by the Operator does not comply with para. 9(2)(h) Schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor. The operator is required to specifically "identify" the creditor not simply name them on it. This would require words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made. APCOA have failed to do so and have failed to fulfil the requirements of the Act to allow them to attempt recovery of any charge from the keeper. Therefore as the PCN was not properly given, it cannot be allowed.

ii. Further, the appellant contends that in any event the Act is not applicable in that the location of the incident giving rise to the charge the Operator is seeking to enforce is not “relevant land” within the meaning provided by para 3 Schedule 4. The entire Airport and its environs are subject of statutory control by virtue of the Birmingham Airport Byelaws 2004. The appellant specifically draws the assessor's attention to the map annexed to the Byelaws an inspection of which it makes clear that the location concerned is within the Byelaw area.

iii. Further it is contended that it is trite law that the act of allowing passengers to board or alight from a vehicle does not amount to parking but, rather, is defined as "stopping". As a consequence of this and the above, the appellant contends that as the Act is not applicable and that the operator is therefore unable to pursue the Keeper in respect of this alleged debt.

2. Signage

i. The BPA AOS Code of Practice sets out in detail how the operator should lay out their signs. The appellant contends that the operator has failed in all respects to comply with the requirements of the Code.

ii. The appellant contends that such signage as has been deployed by the operator in terms of the type face and size used, its location- particularly being fixed above head height on lamp standards at the roadside - render them unreadable.

iii. Even if a driver was to look up, were he travelling at a speed of just 25mph (11metres/sec), he would be unable to read the sign before passing it. The Operator has therefore failed to comply with sections 28.2, 28.3 and 28.4 of Appendix A of the Code and so cannot consider the driver to have been properly informed and cannot therefore seek to rely upon those signs as the basis of any contract.

iv. 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.''

If APCOA intend this apparently private road to be treated by drivers as if it was an urban clearway (the effect being no stopping at all) then the signs and terms used must be compliant with the Traffic Signs Regulations and General Directions (TSRGD) 2002 or they will be misleading and confusing to drivers. The signs at this location do not comply with road traffic regulations or their permitted variations and as such are misleading.

v. Repeater signs in this area are minimal and located parallel to the road, therefore not facing the oncoming traffic and are not positioned where the driver would have seen them. Therefore they were unable to be seen by the driver and certainly could not be read without stopping. It will NOT be enough evidence for APCOA to show one picture of ONE sign because I am contending that there are no traffic-facing 'repeater signs' as would be required in a moving traffic situation.

3. Parking Charge

i. It is the appellant's case that the charge being sought is disproportionate to any loss the operator may have incurred and is therefore punitive, contravening the Unfair Contract Terms Act 1997. It is also the appellant's case that the charge being sought does not represent a genuine pre-estimate of loss incurred by the operator and is therefore a penalty. APCOA contend that the BPA guidelines approve any amount up to £100 (Section 19.1) without justification, however £100 for 40 seconds (as demonstrated by their camera) cannot be considered proportionate. They have also offered to half the charge if no appeal is made to POPLA, a further indication that this charge does not reflect an actual loss on their part. It is therefore requested that the assessor put the operator to strict proof of their assertion that the charge does reflect their losses and that it is not a penalty.

iii. The operator asserts that “...red routes are in operation around the airport site in order to maintain the safety of our passengers, visitors and staff.” This would appear to indicate they have a proprietary interest in the land and that a safety case has required the creation of red routes. Since all roads within the airport, including service roads are marked as red, the primary aim would seem to ensure continuous movement into revenue bearing areas rather than safety. The lack of signs where vehicles would stop, or in a position where drivers would look, is a further indication that the positioning of their cameras reflects maximising revenue rather than safety.

iv. The appellant contends that the operator does not have a proprietary interest in the land or lacks sufficient proprietary interest to either offer a contract in their own name nor to seek to enforce their purported interests or those of their principals or that of the beneficial owners or occupiers. As a consequence they have no legal standing to allege or pursue a trespass or other loss. The operator should therefore be put to strict proof of their interest in the land and their legal authority to act.

v. Further, the appellant contends that as an agent of the landowner the operator's signs do not assist them in the offer or formation of any contract without any consideration capable of being offered. The case of VCS -v-HMRC 2012 is the binding decision in the Upper Tax Chamber (a superior court of record) provides compelling statements of fact about this sort of business model.

vi. Even if a basic contract is produced and makes mention of the issue of PCNs, the lack of ownership or a formal assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the operator 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. (see Para 1)