Airport PCN

froe

Am I right in saying that the "PE v Beavis" addition is therefore not relevant?

Dee140157

Beavis is relevant for any appeal that includes GPEOL, so I would include it.

froe

Here is a draft of my POPLA appeal for members to survey (I hope I incorporated the "PE v Beavis" part appropriately):

POPLA Ref xxxxx
APCOA Parking.PCN no xxxxxxx

A notice to keeper was issued to me (The Registered Keeper of vehicle reg XXXXXXX) for an alleged contravention of 02-Dropping/Picking up outside of a designated parking area on xx-xx-xxxx.

My 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 Parking Ltd 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 contains the following:
21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks. I have had no evidence that APCOA Parking Ltd have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.

3). The BPA code of practice also says '20.14 When you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details. 'The PCN says 'either/or' of 2 different contraventions as a generic catch-all. This does not comply with the BPA code point 20.14.

4). The amount of the charge 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 or the POPLA fee).

Nor is the charge 'commercially justified'. If APCOA parking Ltd cite 'ParkingEye v Beavis & Wardley' it is irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

My case is the same and APCOA Parking Ltd contracts are nothing like ParkingEye's contract in the Beavis case, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, APCOA Parking Ltd are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #7.

5). 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.

6). 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.

7). It is my opinion that there is no contract with the landowner/occupier that entitles them 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.

8). 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.

9) 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 bylaws.


Yours sincerely,
xxxxxxxxxxx

arcon5

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 Parking Ltd 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.

Isn't naming them and identifying who they are basically the same thing.........?

HO87

The general consensus is that in order to "identify" a creditor they must be named - so that the legal entity is clear - and if a company then their registered office also provided.

It would be insufficient, for example, to say the land is owned by "Mr Jones" - provision of a name doesn't allow the creditor to be identified - well certainly not a Mr Jones. Similar it would be insufficient to simply say that the creditor is Black Leisure, when in fact it was Black Leisure (Seafront) Ltd of 22, Any Street, Anytown. HTH

Coupon-mad

arcon5 wrote: »

Isn't naming them and identifying who they are basically the same thing.........?

Nope, because 'the creditor' could be APCOA or could be the landowner (Peel Holdings?) or the Airport Authority, an Airport Handling Company, or some other entity. APCOA being only an agent and not a landowner, they have no locus standi so no assumptions can be made just because they issue pieces of paper with their name at the top. Such as in this case where they tried to sue someone and failed as they have no standing (so they weren't the creditor then!):


24/4/14 3YQ53901 APCOA Parking v Hull Kingston, DJ Smart
OP cited the dropped APCOA cases from 5th Feb (see below) saying APCOA had no standing/no loss and they are paid & keep most of revenue.
She paid for a hearing to strike out:
http://parking-prankster.blogspot.co.uk/2014/04/apcoa-case-struck-out.html
http://forums.pepipoo.com/index.php?showtopic=83479
APCOA wanted £700 but ended up paying Molly £200!

Look at this as well:


http://parking-prankster.blogspot.co.uk/2014/03/apcoa-admit-luton-airport-fines-are.html

froe

Thank you for confirming that point; if noone has any objections then I will send off the appeal. There are four boxes detailing the reasons for appealing to POPLA on the form, and from the searching the forums do I understand correctly that I tick all of them except "the vehicle was stolen"?

Redx

I would add a numbered bullet menu to show what each section is before the main appeal points

you are correct in ticking 3 from 4

froe

Thank you for the suggestion; would this be acceptable?


1). The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012

2, 3). Compliance with BPA code of practice

4). The amount of the charge is disproportionate to the loss and not a genuine pre-estimate of loss

5). Proprietary interest in the land

6). APCOA Parking Ltd are only an agent working for the owner

7.) No contract with landowner that entitles issuance of PCNs

8.) Lack of ownership or assignment of title or interest in the land

9) Airport land is not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability'

nigelbb

There cannot be keeper liability under POFA 2012 as that is concerned only with responsibility for unpaid parking charges incurred by the driver. Dropping off a passenger cannot by any stretch of the imagination be considered as parking.