Appealing APCOA charge for "late" pay by phone - Advice PLEASE

moreorless

Hi all,

I parked at Gloucester Rail station run by APCOA. I paid 'by phone' but only after they had allegedly already given me a parking charge notice.

Having read the excellent advice on this forum, I think I have good grounds to appeal via POPLA and have drafted the below.

Grateful for any suggestions for tweaks/additions.

Cheers,

Moreorless



Dear Adjudicator,

On [date] APCOA issued a parking charge notice of £80 to vehicle [reg number], parked at Gloucester Railway Car Park, as they believed the vehicle was parked without “valid payment”.

As the registered owner, I appeal this notice on the grounds that
- The parking fee was paid;
- the charge is not a genuine pre-estimate of loss;
- APCOA have breached the BPA code of practice;
- APCOA does not have sufficient interest in the land to offer a contract; and
- Gloucester Railway car park is not “relevant land”.

The Parking Fee was paid
The parking fee for the vehicle was paid using APCOA’s “pay by phone” system. In their response to my first appeal, dated [date], APCOA stated that “you have paid for your parking at XXX”. This was many hours before I returned to my Gloucester station, and over XX hours before the midnight expiry of a day’s parking. I do not believe that there was sufficiently clear and well lit signage to say that this was unacceptable.

Not a genuine pre-estimate of loss.

The BPA’s Code of Practice states (p11):

“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.

19.6 If your parking charge is based on a contractually agreed sum, that charge cannot be punitive or unreasonable.”

In addition, the DfT’s guidance on the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges states (p23): “Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss”.

Previous Court rulings (e.g. Vehicle Control Services Ltd vs. Mr R Ibbotson, 2012) and POPLA adjudications have also made clear that ongoing business operating costs (e.g. provision of back office services, employment of parking attendants, maintenance of the site etc) cannot contribute to the pre-estimate of loss.

As indicated above, APCOA have confirmed, clearly and definitively, that the parking fee was paid and that they suffered no loss. They have not demonstrated why the charge is reasonable: it is over 20 times higher than the parking fee legitimately paid.

Therefore the £80 charge in no way represents a genuine pre-estimate of loss, since no loss occurred and no claim can be made for ongoing operating costs. The charge cannot be enforceable on this basis and is punitive, unreasonable and disproportionate and contravenes the Unfair Contract Terms Act 1997.


BPA Code of Practice breach. In addition to not being a genuine pre-estimate of loss, the issued parking charge breaches the BPA Code of Practice in respect of clause 19.7. This states: “If prompt payment is made…you must offer a reduced payment…this reduction in cost should be by at least 40% of the full charge”. The reduced charge offered on the parking charge was £50. This is only a 37.5% reduction on the full charge of £80, and therefore breaches this part of the Code of Practice.

No Contract with the driver
I am not aware that the operator has sufficient interest in the land to offer a contract for parking. I believe that APCOA has no authority to issue parking charge notices, and should produce a copy of the contract between APCOA and the landowner to show what authority, if any, they do have.

Not Relevant Land
I understand that Gloucester Station Car park is not "relevant land" for the purposes of POFA 2012 Schedule 4 therefore I cannot be held liable as registered keeper of the vehicle

==============================

Stroma

Where do you get not relevant land from ? Are there bylaws in place at this location ? You will win on genuine pre estimate of loss, but you should add that the signage is not adequate and go into that as well, and if you are relying on section of the CoP then quote it here, as in the discount

moreorless

"Relevant Land" was from
forums.pepipoo.com/lofiversion/index.php/t86193.html

It's just a direct copy from the appeal used by another user.

Looking deeper it's about the operator coming after me as the Registered Keeper.

I have already appealed in my own name, so perhaps I should just leave that one out. I've no idea about the bye laws situation.

I've mentioned the signage with regards to not being clear that I couldn't pay by phone once I'd left the car park (I thought that was the whole point!). Should I also mention signage with respect to the GPOL bit?

Thanks again.

Stroma

It's best not to use the not relevant land angle unless you actually know it's not relevant land, so if you know there are bylaws there then it will help. Personally I would remove it if you cannot prove the point.

moreorless

Thanks Stroma, I'll remove it. What do you think about the rest of it?

Stroma

It will win, but you need to add about signage. Do they mention keeper liability or pofa 2012? As this is a windscreen ticket did they write to you within 56 days ?

moreorless

It was a windscreen ticket, I appealed to Apcoa by email and they wrote back a few weeks later rejecting my appeal saying to pay up or go to popla. There's no mention of keeper liability or pofa 2012, but i gave my name and address in my first appeal, so they haven't needed to go to DVLA for it.

What more should I say about signage? Is there a good example from someone else's appeal on another thread that you can point me towards?

Thanks again for the help.

Coupon-mad

I would tend to disagree. Any railway car park (or Port, or Airport) is highly likely to be covered by railway byelaws and even if it's not, then that's for the PPC to disprove.

There's no mention of keeper liability or pofa 2012

If there's nothing about keeper liability on the NTK you got in the post (if you waited for it) then there is no keeper liability! But it sounds like you appealed to the windscreen ticket - were you careful only to appeal as keeper? If so then run with the 'no keeper liability and 'not relevant land' issues.

But stuff like this ' This was many hours before xxxx returned to xxx Gloucester station' absolutely blows your argument out of the water as you are saying who was driving - so word it carefully throughout, and check you did the same first time with the initial appeal.

Try some of this sort of wording (except the 'secret camera van' part):

https://forums.moneysavingexpert.com/discussion/comment/65396336#Comment_65396336


HTH

nigelbb

The OP says it was a windscreen ticket which he appealed by email. POFA 2012 & keeper liability is therefore irrelevant now.

Coupon-mad

Not if he appealed as keeper though.

moreorless

Hi there, I appealed as the driver as in my innocence I thought I would be treated maturely by APCOA!

Here's my revised draft...grateful for any more advice.

Many thanks,

Dear Adjudicator,

On [date] APCOA issued a parking charge notice of £80 to vehicle [reg number], parked at Gloucester Railway Car Park, as they believed the vehicle was parked without “valid payment”.

As the registered owner, I appeal this notice on the grounds that
- The parking fee was paid;
- the charge is not a genuine pre-estimate of loss;
- APCOA have breached the BPA code of practice;
- APCOA does not have sufficient interest in the land to offer a contract; and
- Gloucester Railway car park is not “relevant land”.

The Parking Fee was paid
The parking fee for the vehicle was paid using APCOA’s “pay by phone” system. In their response to my first appeal, dated [date], APCOA stated that “you have paid for your parking at XXX”. This was many hours before I returned to my Gloucester station, and over XX hours before the midnight expiry of a day’s parking. I do not believe that there was sufficiently clear and well lit signage to say that this was unacceptable. APCOA have stated that I was obliged to pay before leaving the car, but this is totally unreasonable as the ‘code’ is only written on the railway platform.

Not a genuine pre-estimate of loss.

The BPA’s Code of Practice states (p11):

“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.

19.6 If your parking charge is based on a contractually agreed sum, that charge cannot be punitive or unreasonable.”

In addition, the DfT’s guidance on the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges states (p23): “Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss”.

Previous Court rulings (e.g. Vehicle Control Services Ltd vs. Mr R Ibbotson, 2012) and POPLA adjudications have also made clear that ongoing business operating costs (e.g. provision of back office services, employment of parking attendants, maintenance of the site etc) cannot contribute to the pre-estimate of loss.

As indicated above, APCOA have confirmed, clearly and definitively, that the parking fee was paid and that they suffered no loss. They have not demonstrated why the charge is reasonable: it is over 20 times higher than the parking fee legitimately paid.

Therefore the £80 charge in no way represents a genuine pre-estimate of loss, since no loss occurred and no claim can be made for ongoing operating costs. The charge cannot be enforceable on this basis and is punitive, unreasonable and disproportionate and contravenes the Unfair Contract Terms Act 1997.


BPA Code of Practice breach. In addition to not being a genuine pre-estimate of loss, the issued parking charge breaches the BPA Code of Practice in respect of clause 19.7. This states: “If prompt payment is made…you must offer a reduced payment…this reduction in cost should be by at least 40% of the full charge”. The reduced charge offered on the parking charge was £50. This is only a 37.5% reduction on the full charge of £80, and therefore breaches this part of the Code of Practice.

No Contract with the driver
I am not aware that the operator has sufficient interest in the land to offer a contract for parking. I believe that APCOA has no authority to issue parking charge notices, and should produce a copy of the contract between APCOA and the landowner to show what authority, if any, they do have.