APCOA PCN Birmingham Airport

mrs_n

Hi
My husband is a private hire taxi driver. He was dropping a customer off at Birmingham Airport. On this occasion as per the customer's request he dropped him off outside a hotel where there are red lines and sign says hotel users drop off only. He is unsure if the customer actually went in as he did not wait around.
He received a PCN for BA02 - Dropping off/ Picking up outside of a designated parking area.


The ANPR camera shows 3 pics one of which shows him coming out of the car to remove the customer's luggage. Total time on the pics is 19 seconds!!!


After reading all the threads we decided we are not going to pay and will be sending this template letter.


APCOA Parking
PO Box 1010
Uxbridge
UB8 9NT



Dear Sirs

Re: PCN No. XXXXXXXXXXXX

I refer to the above notice which I challenge, not as driver but as keeper of the car, on the following grounds:

a). The sum sought does not represent a genuine pre-estimate of any loss and yet it is intended as a deterrent, so the charge is a penalty.
b). The signage on site is deficient, the wording unclear and it fails to comply with the Code of Practice.
c). In the absence of any evidence it is my case that you lack any or sufficient proprietary interest in the land.
d). Your notice was deficient and fails to comply with Schedule 4 of the Protection of Freedoms Act 2012.

This is my formal representation. There will be no admissions as to who was driving that day and no assumptions should be drawn in the absence of evidence. I have decided to appeal this as keeper and as such, you must either rely on the POFA 2012 or you must cancel the charge if you know you cannot claim keeper liability in this case. Please uphold this challenge or send a rejection letter, so I can escalate this matter to the independent appeal service offered by your Trade Body.








Can you please let me know if we are doing the right thing? Just worried about the pic showing him coming out of car!!!!


Thanks

Tyler_Du

Advise here is probably relevant - https://forums.moneysavingexpert.com/discussion/5030634

mrs_n

Thanks for the info.
We will send off the template letter and no doubt it will be rejected by APCOA as seems the norm!!!
Will probably need more advice for the next stage regarding wording of the appeal.


So Thanks for now

mrs_n

Hi
I have received a reply from APCOA stating that our appeal has not been successful.


I will therefore be sending this template letter to POPLA.


Dear POPLA,

A notice to keeper was issued to me for an alleged contravention within the Airport site, recorded on APCOA's ANPR system. As registered keeper, I am not liable for this PCN and so I wish to appeal on the grounds numbered 1 - 5 as outlined below:

1) The Charge is not a genuine pre-estimate of loss
APCOA’s letter of rejection against my appeal, and their signage (not seen by the driver at the time, see point 2 below) confirm that this charge represents liquidated damages for breach. It is apparent that the purpose of the charge at this extravagantly high level is predominantly as a deterrent.

APCOA cannot demonstrate any initial loss caused by the alleged event, so there can be no consequential damages flowing from the incident. APCOA would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all. Nor is the charge 'commercially justified'. If APCOA cites 'ParkingEye v Beavis & Wardley' it's irrelevant. 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 full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014: ''In each case that I have seen from the higher courts...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...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...nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

I fully expect APCOA will send POPLA a generic statement showing duplicated layers of staff time, including unnecessary checks and balances. It will no doubt follow the now rather well-trodden path of trotting out the unsubstantiated and incredible assertion that around three hours of Management time 'double checking' the work of others, goes into each and every PCN (whether appealed or not). Where a large percentage of the 'GPEOL calculation' comprises staff costs, they must be able to justify those heads as relating to a typical PCN. And yet only 2% of PCNs get to POPLA stage, so clearly even if a Manager did waste half a day double checking those rare cases which go to POPLA, only 2% of those man-hours could be applied in advance as a GPEOL. Their calculation cannot, in the interests of good faith and open dealings with consumers, include the entire count of man-hours allegedly spent on the odd rare case appealed to POPLA because those extravagant layers of staff costs cannot be in the reasonable contemplation of the Operator at the time of issuing a PCN.

Like other operators, it is in the public domain that APCOA have recently jumped on the bandwagon and manufactured a newly re-written ‘loss’ statement. This is surprisingly similar to that used by PPS (after PPS had won a couple of anomalous POPLA decisions). This allegedly plagiarised calculation is now common to several operators and POPLA has seen it and dismissed it before. A generic 'model loss statement' cannot possibly show any regard to calculating before the event, a genuine pre-estimate of the likely loss which might typically flow from a parking event. I contend APCOA's calculation is merely a conveniently-totalled sum of actual loss suffered, made afterwards, rather than a genuine pre-estimate of loss. Earlier this year and during the whole of the 2 years since POPLA started, APCOA have used a completely different template of 'GPEOL calculation' as evidence, showing the intention of their charges at Airports as calculated in advance. So, a shiny 'new version' written this Summer cannot replace the well-documented (and known to POPLA) old version purely to try to win POPLA appeals, as it is without a doubt, not genuinely based on any calculation made in advance, when meeting with the Airport owners to set the charges for this contravention before APCOA started to charge and operate at this Airport.

As such, POPLA should I hope, see through it just as Ricky Powell did in 6861754004 (re PPS, the originators of the generic calculation APCOA now use):
''I find that the ‘appeal writing’ loss asserted is duplicated in two heads of loss. The ‘Appeals staff’ appeals writing costs are included in the sum for £9.51. However, there are further appeal writing costs included in the ‘Management’ costs, which total £71.65. It has not been explained how the individual heads of loss included under the heading ‘Management’ are calculated. It is also impossible to determine what contribution the appeal writing costs contribute to the total of £71.65. Therefore, I cannot find that the total costs for ‘Management’ are substantiated and so must disregard them from the total genuine pre-estimate of loss...I find that the parking charge is not enforceable in this case. '' (Ricky Powell, Assessor, August 2014).

I contend that APCOA's calculation (even if it is a more credible effort than those recently presented) must fail as it has been re-written recently and is not a genuine PRE-estimate. In fact it would be a 'post-estimate' after the event, of figures designed to match the charge. As such, any re-write by APCOA would be disingenuous and not acceptable, according to the words of POPLA Lead Adjudicator, Mr Greenslade: “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

I put APCOA to strict proof of the date when the GPEOL was discussed and decided for this contravention at this site. This must include documentary evidence of a meeting with their clients at the Airport and/or contemporaneous notes or emails or other evidence which shows how/when this PCN sum was decided in advance, specifically for this part of the Airport, detailing genuinely likely losses caused by this alleged contravention.


2) APCOA have failed to establish keeper liability
APCOA have failed to fulfil the requirements necessary under statute (the POFA 2012) to allow them to attempt recovery of any charge from the keeper.

Sites designated as Airports by the Secretary of State are subject to statutory control in the form of byelaws. POFA 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050. The driver has not been identified, therefore as registered keeper I cannot lawfully be held liable for this charge. If APCOA argue otherwise then they must produce the byelaws and maps to show that this part of the Airport is somehow exempt from statutory control. The onus falls upon APCOA to demonstrate this and I put them to strict proof on this point.

However, even if this Operator counters the above point, there is still no keeper liability because the notice to keeper (NTK) is not valid. It fails to meet the requirements of paragraph 9 of Schedule 4 of the POFA 2012. The liability is not based in the law of contract but is created by the statute and the wording is prescriptive and mandatory.

The NTK issued by APCOA appears not to comply with the Act as follows:
(A) Paragraph 2(a) requires APCOA to specify the 'period of parking',. A layman's interpretation means this requires a stated 'time period' during which the car was evidenced to be 'parked'. A 'period of parking' is not evidenced by a photo of a single moment in time when unmanned ANPR cameras captured the presence of a vehicle registration number on a road.
(B) Paragraphs 2(b), 2(c) and 2(d) require a NTK to “inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full” and to ''describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable'' and to ''specify the total amount of those parking charges that are unpaid, as at a time which is—(i)specified in the notice; and (ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper''. I see no 'time' specified which falls between the date/time of the ANPR photo and the issue date of the NTK. Further, nothing is specified about any charge which could be described as 'unpaid' by the driver, before the day the NTK was issued invoicing me for another sum (which, whilst conveniently also described as a 'parking charge' is not capable of being 'unpaid parking charges' prior to the invoice). If there were no 'unpaid' parking charges then the NTK must still specify those as zero, to comply with 2(d).
(C) Paragraph (2)(h) requires an operator to "identify" the creditor. A layman's interpretation means this requires words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made, which could be the operator but is likely to be the landowner or their client, in view of the court-exposed failings of APCOA's known contracts as detailed in point 4 below.

The fact that some or all of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. As the NTK is not explicit as regards mandatory wording in the Act, it is not valid.

In addition, in my case the NTK was not received within the 'relevant period' either - a fact which which APCOA were made aware of - yet they replied "Please note as the registered keeper of this vehicle, you are liable for this ticket, unless details of the driver are provided". This is incorrect and misleading, and a serious breach of the BPA CoP for APCOA to say that keeper liability applies when they know that it does not.


3) Unclear and unreadable signs; lack of repeater signs for a 'no stopping zone'
If APCOA intend this road to treated by drivers as a clearway then the signs and lines must be compliant with the TRSGD2002 to avoid confusion. Any repeater signs in this area do not face the oncoming traffic, are obscured in places and the words are too small to read from a car. The circumstances which may give rise to a PCN cannot be read and understood without stopping. In breach of Appendix B of the BPA Code of Practice and despite the words of POPLA Lead Adjudicator, Mr Greenslade in the 'No Stopping Zones' section of the POPLA Report 2013, there is a lack of regular repeater signs and nothing about the risk/amount of a PCN can be read by a driver in moving traffic, particularly late in the day or in the early hours or even in adverse weather, because the signs lack prominence at this busy site. The number of recorded cases in the public domain with drivers having no idea that this road is apparently meant to be a clearway, shows that this site is a cash-cow for APCOA and they have had no reason or incentive to make the restriction clear.


4) Lack of standing/authority from landowner
BPA CoP paragraphs 7.1 & 7.2 dictate mandatory contract wording. APCOA has no status to legally enforce this charge in their own right because there is no assignment of rights to pursue PCNs in the courts. They do not own this land and have a bare licence to put signs & cameras up and 'ticket' vehicles, merely acting as an agent on behalf of the Airport. No evidence has been supplied showing that APCOA are entitled to pursue these charges in the courts in their own right.

I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. APCOA have previously failed in several attempted small claims in 2014 when it was exposed that only their principal had the right to start court proceedings. I say this is likely to be typical of APCOA contracts and therefore they are a commercial agent with no standing or authority which can impact directly to form any contract with a motorist. If APCOA produce a redacted contract or basic site agreement/witness statement saying they 'can issue PCNs' this will not rebut my appeal point because a relevant clause showing the landowner to be the only party with rights to sue may well be omitted.


5) ANPR photos show no 'parking' event and the camera system breaches both the ICO registration and the principle of transparency in the UTCCRs
As I am merely the registered keeper, I have no evidence to show me that my car was involved in any 'period of parking' at all. Photos of a vehicle clearly not in a car park but on a road, with the images zoomed in on a number-plate and taken by an unmanned ANPR camera, are not parking photographs. APCOA cannot show beyond the balance of probabilities that the car was not involved in non-parking related activity - e.g. queuing at a junction or adjusting a seatbelt or slowing briefly to read any signs to locate the car park or exit. All of which are acceptable features of driving carefully along an unfamiliar Airport roadway, with the distractions of pedestrians, other signs, bright lights and flags along parts of the road; even if a vehicle slowed or stopped momentarily then this is not parking. I put APCOA to strict proof of an actual period of parking, not proven merely by remote photos of a vehicle on a road.

In addition, the BPA CoP contains the following obligation in paragraph 21:
''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.''
APCOA fail to operate the system in a 'reasonable, consistent and transparent manner'; I have seen no evidence of signs which inform a driver about ANPR technology in use here, nor what the system is used for. Even if there is a sign with a picture of a camera - and I have no idea due to the lack of information from this operator - this would simply suggest CCTV cameras are on site for safety or crime detection by the Local Authority or Police, which would not be an unreasonable assumption in an Airport. A sign with a camera picture would not be sufficient under the Operator's ICO registration, to meet their duty to inform a driver about the circumstances under which the ANPR images and DVLA data is actually being collected and stored and by whom and for what purpose.

Further, the UTCCRs 1999 (statutory regulations based upon mandatory EU Directives) create a duty upon parties offering contract terms to consumers that these must be fair and transparent and set out clearly in plain English. Terms on a sign - which by definition is a contract not negotiated in advance and where the consumer has had no opportunity to influence the terms or have any bargaining power - must ensure that the rights and obligations of both parties are made clear. A hidden ANPR camera or CCTV car trained on the road, with no clear signs informing drivers about the operation or identifying the private firm which is using the data and for what purpose, is clearly unfair and lacks transparency.
UTCCRs Group 18(a): unfair financial burdens, states:
''Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.''
9.2 ''...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
UTCCRs Test of fairness:
''A term is unfair if...it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of the consumer, contrary to the requirement of good faith. Unfair terms are not enforceable against the consumer.''

I therefore respectfully request that my appeal is upheld.

Yours faithfully,


{keeper's name}


Do I need to add anything further regarding the circumstances above??
Was also thinking of sending pic from google maps with the letter as it shows that it can be used for drop off. What do you suggest? Thanks for all your help.

Coupon-mad

Yep that's fine - and if the Google maps show this road can be used a drop off you could attach that as evidence and refer to it in the appeal as well, saying you have no evidence to show that the Airport has removed this right.

You will win whether you include the attachment or not!

mrs_n

Thanks for the feedback. Much appreciated.


I will put this in under Point 3:


There are two contradicting signs outside the IBIS hotel at Birmingham Airport. There is a sign saying it is a restricted zone no stopping. And directly below it is another sign saying Hotel drop off only. I have no evidence to show that the Airport has removed this right Please see the pictures attached.


Is that ok?


Thanks once again for all your help

ampersand

re:
'There are two contradicting signs outside the IBIS hotel at Birmingham Airport. There is a sign saying it is a restricted zone no stopping. And directly below it is another sign saying Hotel drop off only. I have no evidence to show that the Airport has removed this right Please see the pictures attached.'
#
Tweak:
As the attached contemporaneous pictures show, the two signs outside the IBIS hotel at Birmingham Airport contradict each other.
One says 'Restricted Zone. No Stopping'.
Directly below, the second reads 'Hotel drop off only'.

I have no evidence to show that the Airport has removed this right.'

mrs_n

HI thanks for that


Will amend it using your wording and send it off.


Will let you know of the outcome.


Thanks

trisontana

I was staying at that hotel on Sunday and noticed one of their vans parked across the road with its camera pointing directly at the hotel entrance hoping to trap people. Instead of that, why don't, they station one of their goons outside the hotel and tell motorists to move on? That's' called mitigating losses!

mrs_n

Hi


I have now received a letter from Debt Recovery Plus Ltd asking for payment of £150.


As per info given on other threads, I will be ignoring this letter and will not be contacting them.


However, do I need to send a copy of this letter to POPLA?


Thanks

Coupon-mad

Yep you could email POPLA and the BPA as well (POPLA to let them know, and the BPA to complain about this clear breach).