APCOA (Harpenden Rail Station) - UPDATE: PCN Cancelled!

ColliesCarer

Make sure you also include an additional point as I advised in post #5 too.

ColliesCarer wrote: »

........Also as this was a station it might be subject to byelaws and would therefore not be relevant land for POFA to apply regarding keeper liability and if so you would have an additional point......

Given it is railway land it is almost certainly covered by byelaws and so 'registered keeper liability' cannot even apply under the POFA.

ColliesCarer

GHA wrote: »

I have a couple of photos taken at night showing a lack of road markings to indicate the area is for Premier Parking only. APCOA have painted road markings at the entrance to the area less than one week ago - should I take a new photo to show the new markings, and include it at all? I assume I should mention that the road markings have since been updated?

Thanks

Yes you can include those and new photos would help rebut any attempt by APCOA to include the new markings as though they were present at the time of the alleged event - but make sure it is about unclear terms/signage/markings and doesn't come over as mitigation.

Don't waste too much time on the photos though - your appeal will most likely win on no GPEOL

GHA

Here's a first draft:

---

POPLA
PO Box 70748
London
EC1P 1SN


Dear Sir or Madam,

PCN number FCCXXXXXXXX


I am the registered keeper and this is my appeal:

1) Lack of signage – No contract with the driver
The vehicle was parked in a standard bay with a sign stating ‘Bay 34’ attached to the fence directly behind, as acknowledged by APCOA in their rejection of appeal letter. There was no other signage associated with the bay, nor with adjacent bays. This can be seen in the four photographs provided by APCOA, and Photographs 1, 2, 3 and 4, attached. Photographs 1 and 2 were taken on XXXXXX during daylight hours, and Photographs 3 and 4 were taken on XXXXXXX. Photographs 4 and 5 (taken on XXXXXX during evening hours) also illustrate a lack of signage or markings to indicate that the area is for Premier Parking bays only. Road markings were updated within the last seven days to designate the area as ‘Premier Parking Only’ as shown in Photograph 6 (taken on XXXXX during daylight hours).

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

The signage also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver: ''Signs should be readable and understandable at all times''.

2) The charge is not a genuine pre-estimate of loss
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.

3) Lack of standing / authority from landowner
APCOA has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put APCOA to strict proof of the contract terms with the actual landowner (not a lessee or agent). APCOA have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. 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.

4) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. Also the NTK completely misinforms the rights of a registered keeper to appeal, alleging that the appeal time has 'elapsed' when it has not and wrongly restricting the keeper's options at that stage to appealing only if the vehicle was stolen. I have no hesitation in stating to POPLA that this is a lie that POPLA should report to the BPA. In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.

Schedule 4 para8(1): 'A notice which is to be relied on as a {NTK is given} if the following requirements are met.
(2)The notice must —
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
(g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available'

The NTK is a nullity so no keeper liability exists.

5) Railway Land Is Not ‘Relevant Land’
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 bylaws.

6) Unreasonable/Unfair Terms
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.

A lack of signage designating ‘Premier Parking’ bays from standard bays, is far from 'transparent'.

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.”

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

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

Yours faithfully,


[FONT=&quot]XXXXX[/FONT]


[FONT=&quot]

---

[/FONT]


[FONT=&quot]I am unsure on Section 4 in particular, but also Section 6. The PCN is at home but IIRC the requirements were met. I will check when I get home.[/FONT]


[FONT=&quot]Also the last paragraph needs updating as I've used a template talking about unlit signage rather than sub-standard designated signage.[/FONT]


[FONT=&quot]I can prove the markings have been updated because the new bays are yellow rather than white as in APCOA's photographs and my own! If any of you patient people could have a look and let me know your thoughts that would be great.[/FONT]


[FONT=&quot]Thanks yet again![/FONT]

Coupon-mad

Section 4 isn't relevant as written there, because it's talking about a UKCPS Notice to Keeper letter. You can see that APCOA's NTK letter didn't pretend you could only appeal as keeper if the vehicle was stolen.

But you have missed 'unclear signage which is deliberately in every POPLA appeal we show, to force the PPC to show maps & signage pics which can trip them up:

http://parking-prankster.blogspot.co.uk/2013/06/highview-parking-send-in-map-of-wrong.html

So have another look at the templates to find 'unclear signage' and put that in instead as your point #4. In fact I think you would be best to search this forum for 'APCOA railway POPLA' as keywords and you should see a pre-written version on someone else's thread within a minute or two.

You'd also need to lose this bit from point #6, which is about UKCPS' lies:

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

GHA

Should I put Unclear Signage as point 4, even though I already cover a lack of signage in point 1?

Thanks

Coupon-mad

Aghhh, my bad - you already have it (I must have read too many cases last night!). Nope just re-number it and remove the bit I said, and check there's nothing else specific to UKPC (anything talking about particular issues or letters or lies won't be part of any template to suit all cases so you cannot just use it without reading it all).

Show us what you are now left with!

GHA

Yeah, I saw the lies bit but wasn't sure what to replace it with. I'll make the changes and post shortly.

Cheers!

GHA

Latest revision below...

---

POPLA
PO Box 70748
London
EC1P 1SN

Dear Sir or Madam,

PCN number FCCXXXXXXXX


I am the registered keeper and this is my appeal:

1) Lack of signage – No contract with the driver
The vehicle was parked in a standard bay with a sign stating ‘Bay 34’ attached to the fence directly behind, as acknowledged by APCOA in their rejection of appeal letter. There was no other signage associated with the bay, nor with adjacent bays. This can be seen in the four photographs provided by APCOA, and Photographs 1, 2, 3 and 4, attached. Photographs 1 and 2 were taken on XXXXXX during daylight hours, and Photographs 3 and 4 were taken on Saturday, 22nd March, 2014. Photographs 4 and 5 (taken on Saturday, 22nd March, 2014 during evening hours) also illustrate a lack of signage or markings to indicate that the area is for Premier Parking bays only. Road markings were updated within the last seven days to designate the area as ‘Premier Parking Only’ as shown in Photograph 6 (taken on XXXXX during daylight hours).

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

The signage also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver: ''Signs should be readable and understandable at all times''.

2) The charge is not a genuine pre-estimate of loss
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.

3) Lack of standing / authority from landowner
APCOA has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put APCOA to strict proof of the contract terms with the actual landowner (not a lessee or agent). APCOA have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. 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.

4) Railway Land Is Not ‘Relevant Land’
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 bylaws.

5) Unreasonable/Unfair Terms
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.

A lack of signage designating ‘Premier Parking’ bays from standard bays, is far from 'transparent'.

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.”

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

Yours faithfully,




XXXXXXXXX

---

Thanks![FONT=&quot]
[/FONT]

Coupon-mad

Yes that will do the job!

GHA

Hi - about to send the appeal off. Should I include my original rejection letter sent to APCOA as well, as an appendix? Or leave it out and just include the photographs?

Cheers!