APCOA at Huntingdon station - WON AT POPLA

EngineerMan

I've received APCOA's pack now, and read through it. There are a few points I've noted, but I'm sure that people more expert than me will spot more.

They indicate that the registered keeper address was provided by the driver - which is not true. At no point has any information been provided to APCOA regarding the driver of the vehicle.

The 'other evidence' provided does include a letter from Thameslink about authority, and loads of info about signs and maps. They indicate that they believe that I need to prove that the amount of the PCN is not a GPEOL, although they have indicated how a cost of 98 could be justified (standard terms though, as in this case they did not need to contact DVLA for details.)

They have not answered the point raised in my POPLA letter regarding the requirment for them to indicate the period of parking - and this is my major frustration with this entire process- the ticket machine issued a ticket that had expired several hours before purchase, and we didn't notice. The ticket has a serial number that is visible in their photos, and I would assume that this could be referenced to a time of purchase. There is no method at any stage for querying this.

I can't post a link, but if you add the necessary for a secure website to the beginning of this it should work.
dropbox.com/s/12t1z79kqpquufw/POPLA_PACK-0510075503%20redacted.pdf?dl=0

Do I now simply wait for the POPLA decision ?

Tim

DoaM

Best to send a rebuttal to their evidence, especially the point about keeper/driver and to their GPEoL calculation - you don't need to prove it's not, they need to prove it is. (But anyway Mr. POPLA, here's why it isn't a GPEoL........)

EngineerMan

The evidence pack lists lots of things, but I think it is appropriate to rebut some of the evidence that APCOA have provided. I'd welcome advice on the following approach.

The APCOA evidence pack indicates that the name and address of the keeper were provided by the driver - this is not correct. The PCN was passed to me as keeper, and I provided my name and address as keeper directly to APCOA.

On the subject of GPEOL, the evidence pack shows :

The driver does not dispute the contravention occurring and has instead appeal that the amount is not a genuine pre-estimated loss.
The driver has not offered any evidence as to why the charge exceeded the appropriate amount; they have simply stated that in their opinion it does. We contend that that the burden of proof lies with the motorist to lay out their reasons with supporting evidence as to why the charge is not appropriate. There is a long and detailed process put in place to enforce parking T&Cs at a parking site, which if were not undertaken would lead to a loss of control of the car park, where vehicles park without consideration to others and/or block access routes etc., a loss of revenue where drivers did not or forgot to pay, or the failure to keep allocated bays (for example disabled parking bays) available for those in the most need of it. At present we are limited by the British Parking Associations Codes of Practice as to what the level of a PCN can be charged. We chose on a business case, mindful of the costs incurred above, to levy a PCN of £85 reduced to £50 if paid within 14 days. Often it is the case that we incur charges in excess of £85 but this additional cost has to be then subsidised from other parts of our business.
During October 2012 after significant pressure from Government and motoring/consumer organisations, the BPA reduced the maximum recommended charge for that a motorist should be expected to pay for a breach of the parking contract or for an act of trespass from £150 to £100. Despite the BPA being unable, due to prevailing legislation, to fix prices at this level, the actions of the Association were welcomed by all stakeholders. In this instance the charge being levied is well within the recommendations set out within Clause 19.5 of the BPA Code of Practice. This sum, and the calculations which have been made in setting it, has been approved and agreed by the landowner.
Parking Charges are fair and reasonable, and have been tested at the Court of Appeal. A charge of £75 was found by HHJ Hegarty QC in the case of Parking Eye v Somerfield Stores (2011) to be a reasonable charge, by which the motorist (when exceeding the specified time limit) would be contractually bound. See also Combined Parking Solutions v Dorrington (2012) and Combined Parking Solutions v Blackburn (2007). Further evidence, that parking charges cannot be viewed as penalties, can be found in Mayhook v National Car Parks and Fuller [2012], Combined Parking Solutions v Mr. Stephen James Thomas [2008] and Combined Parking Solutions v De Brunner [2007]
In the POPLA evidence pack we have provided clear evidence that by staying at the location, the motorist has accepted all of the prevailing terms & conditions of the parking contract including the charges for not complying with the advertised terms and conditions. There are a large number of signs at the parking location, both at the entrance and throughout the site which offers the parking contract to the motorist, and sets out the terms and conditions of the parking area on which the operator will rely, and on which the motorist has agreed to be bound by which will become payable if the terms and conditions of parking are not met.
We would contend that it is too late now to indicate that they are unhappy with the parking charge – this should have been done at the time of accepting the ‘parking contract’ - if the motorist was unhappy with the contract terms, they should not have remained at the location. The amount of our charge has been calculated in advance and is clearly set out on the notices and signage. As such it is accepted on parking and the driver cannot claim that there are any Trading Standards or Consumer Regulation breaches as they have accepted the conditions at the point of opting to park at the location. On accepting the parking conditions we argue that the complainant cannot now seek to effectively renegotiate them or to dismiss them in their entirety. The charge of £85 reduced to £50 is as advertised and within BPA guidelines.
That said we aim to set out our position in the remainder of this document as to why our charges can be determined as a genuine pre-estimate of the losses incurred by us due to the breach of the stated terms and conditions.
The genuine pre-estimation of loss set out below refers to costs that we estimate, at the time of issuing the PCN, would be incurred in this case;
 DVLA Fees / Processing Costs for this appeal/Enforce IT/ £33.00  Admin Expenses for this appeal: Stationery £3.00  Postage £2.00  Printing £2.00  Attendant staff wages and salaries including Employers National Insurance Attendants (PCN recording and issuing) for this case £18.38  Appeals Staff 1 hour (call handling / appeals writing) for this case £10.23  Management at 3 hours (quality control / evidence gathering) for this case £30.28
Total Genuine Pre-estimation of Loss for this case. £98.89
This notice has therefore been issued correctly.
The driver entered onto private land freely and in full acceptance of the terms of parking clearly displayed. A tariff and terms and conditions are offered; and by purchasing parking and remaining in the car park, these are accepted.
It is the driver’s responsibility prior to leaving their vehicle to ensure that a payment is made and displayed as instructed, and the vehicle is parked in accordance to the terms and conditions of that site. The driver breached the terms and conditions by leaving the vehicle parked without a valid payment on display.

The costs indicated by APCOA are not a pre-estimate of loss in this case. The keeper of the vehicle provided details without need for APCOA to contact the DVLA. No stationary has been used, no printing has been required, and no postage costs incurred, as all communication both with the keeper and POPLA has been completed electronically.
Staff wages and salaries for issuing a PCN should not be included as a pre-estimate of loss, as the majority of cases do not proceed to appeal.

Regarding Signs:
APCOA have provided a detailed map and photos of the signs, including one taken in darkness as requested, so I don't think there's much to argue here ? Images here:
[IMG]hxxp://tinypic.com/r/314yxe9/8[/IMG]
[IMG]hxxp://tinypic.com/r/dbsg8y/8[/IMG]
[IMG]hxxp://tinypic.com/r/wrmn43/8[/IMG]

Standing/Authority
APCOA have provided a copy of an unredacted document showing some authority from Govia Thameslink. To my uneducated eye it seems OK, but I'd welcome an opinion.
[standard secure website beginning bit] dropbox.com/s/su6u9hyfh4b878y/apcoa%20thameslink%20doc.pdf?dl=0

Railway land - there is no indication or recognition that as keeper I am not liable for this PCN.

Non-compliant PCN
APCOA have not indicated the period of parking as required by POFA. The serial number of the parking ticket as shown on APCOA's photographs should be sufficient for them to determine the time of purchase at approximately 0920 on the morning of 23rd December, approximately 7 hours after the printed expiry. This provides a clear indication that the ticket machine was faulty.

Unreasonable terms:
There was no loss, therefore the PCN claimed is a punitive sum. APCOA do not dispute that a ticket was purchased, and their own records will show that the ticket machine printed an erroneous expiry time.

Not sure if there's anything else I could add ?

EngineerMan

following APCOA's evidence, I sent this:

Dear POPLA,

APCOA have submitted an evidence pack, and I wish to submit corrections to factual inaccuracies, and rebut some of the points they intend to make.

In their evidence pack section C, APCOA show a ‘contravention time’. BPA code of practice Appendix C, para 7 (2) (c) align with POFA in requiring the period of parking to be indicated. If APCOA had taken the trouble to identify the time of issue of the parking ticket shown displayed in the vehicle in their own photograph (surely available from the serial number printed) they would note that the ticket was purchased at approximately 0920. This is some 7 hours after the indicated time printed, showing a clear failure of their systems and ticket generation equipment. Their lack of attention to complying with the BPA code of conduct requirement to record the period of parking, both at the time of recording the event and later in processing the appeal, rather than a spot check at a particular time shows disregard for this aspect of the code of practice.

Section D of APCOA’s evidence indicates that the keeper’s details were provided by the driver. This is factually incorrect. As keeper, I provided my details to APCOA before they requested them, to ensure that costs involved in processing this case were minimised.

APCOA indicate in section E that documents are ‘to follow’. There are no clear details of these documents, and whilst as keeper, I have details of the rejection of the poor APCOA appeals process and have been handed the original PCN, these are not listed. APCOA need to provide either confirmation of the documents that they intend to use to support their case, or copies of these documents.

Section F of APCOA’s documentation clearly shows an image of the windscreen ticket, allowing the serial number of the ticket to be read (052011). This serial number will allow APCOA to determine the time of purchase as approximately 0920, and confirming the printed expiry time as a clear equipment malfunction.

In section G, APCOA seem to infer that it is up to me to demonstrate how their charge is not a GPEOL - I am not sure this is possible and is any case a moot point as the burden of proof is upon them to demonstrate the loss that has occurred as a result of the alleged breach. Despite submitting this huge 'evidence' pack they have failed to do this.
The costs submitted are clearly a template, as they include DVLA costs. In this case I acted promptly as keeper to provide details to APCOA to minimise any cost involved. They should not have incurred any DVLA related costs.
APCOA’s list of costs is not a genuine ‘pre-estimate of losses’. How can they ‘pre-estimate’ that;
a) there would be a POPLA appeal for this case in the first instance
b) therefore they would incur costs to ‘process the appeal’, have to pay wages for staff to record and issue the PCN, pay staff to coordinate the appeal (re-print a standard template response), and incur management costs
Staff wages and management time are business costs that APCOA are trying to recover, which is directly in contravention of the DfT guidance.
All communication with me and POPLA has been completed by email, so no documents have been posted, or printed, so stationery and postage costs are clearly in excess of those incurred in this case.
If APCOA had made a serious effort to identify the loss incurred, they would have determined that the displayed windscreen ticket was produced incorrectly by their equipment, and that there was no significant loss.
To reiterate, the statement made by APCOA clearly shows that they are recovering business costs, directly conflicting with the statement from The Department for Transport guidelines
"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."
In addition to the same the Office of Fair Trading information to the BPA about parking charges states that these are not automatically recoverable: ''The OFT expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists.”
To me it is clear that APCOA are attempting to create a loss where none had existed prior to the issuing of the PCN, as a windscreen ticket had been purchased, even though APCOA’s equipment has printed incorrect information. As The Department of Transport Guidelines state that the losses mentioned (Processing costs for this appeal, postage, Staff wages and management time) are all business losses excluded by the Department of Transport's guidelines.
The fact that APCOA have stated several times that they are willing to accept £50 as opposed to £85 for the alleged contravention highlights this flagrant bending of the guidelines.
I would suggest that the breakdown provided is, in fact, an inflated set of costs designed to exceed the figure proposed as opposed to being a Genuine Pre- Estimate.


The POPLA appeal assessment is complete, and the result is:


As the appellant has at no point admitted to being the driver of the vehicle and no evidence of this has been provided, in order for the appellant to be liable for the charge the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with. One of these requirements is the issue of a ‘notice to keeper’ compliant with certain provisions. As the operator must produce evidence that this has occurred regardless of whether the issue is raised by the appellant, as the liability is not based in the law of contract but is created by the statute, and no evidence has been produced to me by the operator of the existence of a ‘notice to keeper’ in any form, I cannot find that the charge notice is enforceable against the appellant. In the light of this, I am not required to consider the appellant’s substantive case.
Accordingly, I allow the appeal.
Christopher Monk
Assessor

This all seems a bit odd to me, as the car park is railway land, so POFA doesn't apply ? Also, I 'fessed up to APCOA as keeper of the vehicle before they had to contact the DVLA and get the keeper details, therefore there never was an NTK.

Its annoying that the whole issue of the ticket being printed incorrectly which caused all this fuss has never been considered as a part of this case !

Anyway - Yay for the help and advice from this forum !

Coupon-mad

Well done on that rebuttal, nice! No NTK is fatal to keeper liability - they are dumb!

Castle

EngineerMan wrote: »

This all seems a bit odd to me, as the car park is railway land, so POFA doesn't apply ? Also, I 'fessed up to APCOA as keeper of the vehicle before they had to contact the DVLA and get the keeper details, therefore there never was an NTK.

Whilst it may be railway land it may not be subject to the Railway Bylaws, in which case POFA could apply.

Even though you informed them that you were the Keeper, they still have to issue a formal NTK to use POFA; even if they didn't get your details from DVLA.

So as they couldn't prove you were the driver, there's no case to answer, and therefore the faulty equipment issue didn't need to be considered.

EngineerMan

APCOA may feel that this was perhaps a little harsh, as they have not claimed that POFA applied at all in the case, and the signs show that railway byelaws cover the car park.
The only mentions of POFA were in my appeal to POPLA and the rebuttal.
However, as I understand it, in all cases they are still supposed to issue an NTK once keeper details are available, either from the DVLA, or provided by the keeper as in this case.

I can't help feeling that a more open approach, willing to discuss any issues would fix a bunch of this. For goodness sake, in this case, the driver bought a ticket and displayed it. The ticket machine printed a clearly stupid time that the driver didn't notice - simply being able to discuss it with someone, and come to an arrangement where the driver could have paid the 50p outstanding and maybe a small and reasonable admin charge (say 10 quid),and all of this would have gone away. Sadly, the APCOA appeals process did not invite the relevant information before they had to stump up a POPLA fee, and the advice, based on other's experience is never to call the companies as they are extremely aggressive.

I fully accept the need for organisation of parking, and that there are costs involved in providing it. I don't object to paying a reasonable price for my car park ticket, and try hard to stay within the rules.

So if APCOA monitor this board - that's my suggestion !

The_Deep

I'm not sure I have time for trading standards, I'm struggling to find time to deal with the PCN !

I hope you can find the time. The actions of the PPC may be be criminal, let it go and they will try it again.