Parking Enforcement APCOA Birmingham Airport

Birmingham_Motorist

Hi - I received a "PCN" on 30/8/14 from APCOA for my vehicle being allegedly used for a "dropping off / picking up outside of a designated parking area" on 13/8/14. APCOA are seeking to make me liable as registered keeper.

I've done the standard appeal (many thanks for the help received from this forum), but had it denied in a 4 page letter full of standard paragraphs. I'm now drafting my appeal to POPLA, using the wonderful suggestions from this forum, and would be grateful for any comments before I send it off. One other specific question is whether I need to send copies of APCOA's letters with my appeal.

Dear Sir / Madam

POPLA code xxx, APCOA Charge Notice Number BIAxxxxx
Vehicle Registration No xxxxxx



As the registered keeper of xxxxx I received APCOA Parking Limited’s “Parking Charge Notice” (PCN) dated 29/08/2014 on 30/08/2014. This was for an alleged contravention of BA02-Dropping off / Picking up outside of a designated parking area at Birmingham International Airport on 13-08-2014 at 04:21. The above vehicle was allegedly recorded by ANPR camera. I declined the invitation to pay their charge or name the driver, neither of which are required of me as the keeper of the vehicle. I appealed, and this appeal was refused.

I continue to deny all liability to APCOA Parking Limited (“APCOA”) on the following basis.

A There is no liability to me as keeper
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APCOA have failed to identify the driver of my vehicle. They are now seeking to impose liability on me as keeper. As far as I am aware, the Protection of Freedoms Act (2012) (“PoFA”) is the only legal means by which APCOA could seek to do this, but they specifically avoided reference to this Act in their correspondence. If they are not seeking to use PoFA to impose liability on me as keeper, they should state and prove the legal basis they claim makes me liable. If they cannot, then my appeal must be allowed immediately and the POPLA adjudicator can be spared consideration of the rest of this appeal letter.

Should APCOA now seek to make use of PoFA (despite avoiding doing so in their correspondence with me), I deny any possible use of PoFA to impose liability on me as keeper on the following grounds:

a. 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. Birmingham Airport land is therefore not 'relevant land' for the purposes of PoFA as parking-related statutory byelaws apply and so it is specifically excluded from 'keeper liability' under Schedule 4 of the PoFA. 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.

b. Even if APCOA can adequately counter the above point, there is still no keeper liability because their notice to keeper (NTK) is not valid. It fails to meet the requirements of paragraph 9 of Schedule 4 of the PoFA. The liability is not based in the law of contract but is created by the statute and the wording is prescriptive and mandatory. As the NTK is not explicit as regards mandatory wording in the Act, it is not valid.
i) The notice to keeper was not compliant with paragraph 9 (2)(h) of schedule 4 of PoFA in that it did not identify the creditor . The operator is required to specifically "identify" the creditor not simply name them on it. A layman’s interpretation means this requires wiords 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.
ii) 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 three photographs over a period of 23 seconds of a vehicle stopped with its lights on, which is all that APCOA have produced in their correspondence with me. A short stop of 23 seconds is not parking for the purposes of PoFA and PoFA only applies to “parking incidents”, so no keeper liability applies. The photographs on the “Parking Charge Notice” clearly show the car stopped on a road and not in a car park. There was no parking contravention at all.
iii) 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 photographs 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. In addition, the NTK was not received within the relevant period. The “Parking Charge Notice” was received more than 14 days after the alleged contravention. The alleged contravention date is 13/8/14 and APCOA’s notice is dated 16 days later on 29/8/14, and received 17 days after the alleged contravention. Schedule 4 paragraph 9(5) of PoFA and Appendix E of the AOS code of practice clearly states that a demand letter to the registered keeper must be delivered (not sent) within 14 days of the day following the issue event. I made APCOA 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. In their letter of 26/9/14 APCOA claim that the 14 day limit does not apply because the notice did not mention “under Protection of Freedoms Act”. Yet in the absence of any other legal basis to make me liable as keeper, they must rely on this Act to seek to make me liable as registered keeper. In view of all the reasons detailed above, APCOA cannot use PoFA to enforce liability on me as keeper.

It may be further relevant that
d. The BPA code of practice says at 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” omits this detail and so does not comply with the BPA code.

e. Sections 21.4 and 21.5 of the BPA code of practice also contains the following:
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.
21.5 If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9).
I have had no evidence that APCOA have complied with these BPA Code requirements for ANPR issued tickets in 21.4 and so require them to evidence their compliance to POPLA. Nevertheless I have demonstrated in b) and c) above that that they failed to meet the strict requirements and timetable of Schedule 4, paragraph 9 of PoFA and that they are therefore in breach of section 21.5 of the BPA code of practice.

I therefore contend that APCOA have failed to establish my liability as keeper – and also breached the BPA code of practice - and my appeal should be allowed. Furthermore, I contend that in any case there is no liability for the driver and hence, even if keeper liability did apply, I would still have no liability.

A. There is no liability for the driver because the vehicle was not improperly parked


In their letter of 26/9/2014 APCOA falsely claimed to have issued a PCN on 13/8/2014. This is a claim that they cannot prove and one that they failed to make in their initial letter dated 29/8/14. If they did issue a Notice to Driver at the time of the alleged contravention, they should produce evidence of this. The timings of the three photographs provided by APCOA show a total elapsed time of 23 seconds and the vehicle lights are shown to be on. It was also not adequate time for a Notice to Driver to be issued, even if APCOA had sought to do so. As well as showing APCOA’s lack of concern for truth and proper process, it is obvious that the vehicle was not parked. 23 seconds would certainly be much shorter than an appropriate “grace period” as defined within the British Parking Association’s (BPA) Code of Practice.

B. There is no liability for the driver because the charges are disproportionate, APCOA have no right to levy such charges and did not make a contract with the driver.

1. The amount is neither a genuine tariff/fee for parking, nor is it based upon any genuine pre-estimate of loss to APCOA or the landowner. There was no loss or damage flowing from this event. 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 consider the PCN to be a penalty because APCOA 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). APCOA’s letter to me of 26/9/14 claims that they are not liable to justify their charge. However their quote from section 19.5 of the BPA guidelines only refers to justifying in advance charges of more than £100. It does not discharge their responsibility to show a genuine pre-estimate of loss when they subsequently seek to impose such a charge.

APCOA’s letter of rejection against my appeal, and their signage (not seen by the driver at the time) show 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. While they claim that the sum and calculations have been approved and agreed by the landowner, this in no way demonstrates that they represent a calculation of loss from this alleged breach.

APCOA have not asserted and 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 suspect APCOA may send POPLA a generic statement showing duplicated layers of staff time, including unnecessary checks and balances. It may 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 'genuine pre-estimate of loss calculation' comprises staff costs, they must be able to justify those heads as relating to a typical PCN. And yet I believe 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 genuine pre-estimate of loss. 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 time since POPLA started, APCOA have used a completely different template of 'genuine pre-estimate of loss 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, I hope POPLA agree with Ricky Powell’s finding in 6861754004 (re PPS, the originators of the generic calculation used by APCOA):
''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 genuine pre-estimate of loss was discussed and decided for this alleged contravention at this site. This must include dated, contemporaneous, unredacted 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.
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2. APCOA are not the landowner and do not have the standing to offer contracts to drivers nor to bring a claim in their own right. In my appeal letter to APCOA I requested:
[FONT=&quot]“Proof of your locus standi to offer contracts to drivers at this site and to bring a claim in your own right for this particular alleged contravention. As you are not the landowner, I will need to see a copy of your contract, showing the restrictions, the charges, the dates and terms of business including any payments between yourself and your client and the definition of your status as agents or contractors and your assigned rights (if any). Such detail is necessary for me to make an informed decision. Failure to divulge your landowner contract (or heavily redacting it) will be deemed as withholding pertinent information and, of course, I would require it to be shown at independent appeal stage anyway. A witness statement will not suffice, nor a site agreement with a managing agent or other party who is not the landowner.”
[/FONT][FONT=&quot]APCOA’s response to my appeal dated 26/9/14 failed to meet this request and merely included a copy of an alleged letter dated 29th May 2014 from David Winstanley of Birmingham Airport to APCOA. This letter does not prove a contract existed between the landowner and APCOA (it does not establish that Birmingham Airport Limited is the landowner with the power to grant APCOA the right to make claims in their own right, nor that a contract has existed between these two parties to grant this right, or that such a contract was in effect on 13/8/14). Hence, despite my explicit request, I have still not seen adequate proof that a contract exists with the landowner/occupier that entitles APCOA to levy these charges and that APCOA has authority to issue PCNs and to pursue PCNs to court. BPA CoP paragraphs 7.1 & 7.2 dictate mandatory contract wording. APCOA 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.

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[FONT=&quot]This being the case, the burden of proof is with APCOA to prove otherwise by producing a copy of their contract with the owner/occupier for the POPLA adjudicator to scrutinise. 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 and the owner/occupier, containing nothing that APCOA can lawfully use in their own name as a mere agent, that could impact on a third party customer. 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.

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3. The time of the photographs taken of the vehicle is 04:21 am. The “clearly displayed” signs APCOA claim are present throughout the area at the airport are not clearly visible at this time of night to drivers. The sign in the image shown in APCOA’s correspondence is not illuminated and so not readily legible in the dark at 4.21am when APCOA say the alleged contravention occurred. Also, the driver would require more than 23 seconds to be able to stop, read and understand the sign details and so form a contract with APCOA. As APCOA’s reply to my appeal makes clear, “if a motorist is unhappy with the contract terms, they should not remain in car park.” With APCOA’s photographic evidence showing an elapsed time of only 23 seconds, it must be evident that the driver did not accept the contract terms and left. Hence the driver has not entered into any contract with APCOA. All contracts must have an offer, acceptance and consideration. All three elements are missing. There is no clear and legible offer from the operator. There is no acceptance from the driver because the signage cannot be read at that time of night in the time available, so the driver cannot be said to be aware of the contractual terms. Finally, there is no consideration paid by the driver. Rather than a contract, this is a non-negotiated and totally unexpected third party 'charge' foisted upon a legitimate motorist who is not APCOA’s customer and not a party of equal bargaining power. Therefore ALL terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver.

I look forward to my appeal being upheld.

Yours faithfully

Coupon-mad

That's a nice appeal - although it looks like you have two points 'A' which looks as though should be A, B then C? Anyhow, it will win! Tick 3 out of 4 appeal reasons boxes on the POPLA website and put a synopsis of your appeal briefly in the Appeal box and say 'see attached full appeal as evidence' (then 'attach evidence' which is a PDF or JPEG or word document attachment of the above full appeal). Better than trying to put it in the appeals box where the formatting is lost and it may not all fit.

One other specific question is whether I need to send copies of APCOA's letters

Nope, they have to provide those in their evidence pack. You'll get a copy by email and can email POPLA about anything you wish to rebut before the decision is made.

Birmingham_Motorist

Thanks, that's most reassuring. I've submitted the appeal and attached the letter.

Birmingham_Motorist

Just heard from POPLA that APCOA have cancelled the PCN - seems they didn't want the appeal adjudicator to consider the arguments!

Coupon-mad

Yay - they've done that before!