Apoca Popla appeal

Bats_about

Hi, I am new here and I have read and re-read the Newbies posts. I have gone through the process of getting a PCN from APOCA appealing against that (Thank you for the information posted on this great site) and writing to the CEO of Birmingham airport.

The Letter that I wrote to the CEO has potential because they admitted that the singe was not present for the drop off zone in car park 5.

I have written back again as the letter asked me to send details of the PCN for them to review, on their letter it says that there clear singe at the start of the airport grounds; however I have written back saying that this sign reads: Warning no Parking not Warning no stopping, and also has not indication as to what will happen if you do - stop!

Stopping as opposed to parking are different, unloading is allowed even in a no parking area. So I am awaiting further communication from them.

So…. I am now at the Popla stage and there is a great post on this with the Popla appeal that need.

The purpose of my post is that I want to check the relevancy of the Popla appeal that nothing has changed as the last one I found was written in 2014. It quotes number of court cases pending, which may now have been resolved and also there is a line that reads "Earlier this year and during the whole of the 2 years since POPLA started" this may now be out of date.

I want to thank everyone for all this incredible work and I hope that I have not started a new thread and upset the mods unnecessarily with this post. If someone could help me with an up to date Popla appeal I would be very grateful

Redx

start from the last page of the POPLA DECISIONS sticky thread, working backwards, and check those names who won, click their name and look at their threads

also look at this list of good examples too

http://forums.moneysavingexpert.com/showpost.php?p=62180281&postcount=15

but bear in mind that due to the Beavis case its a difficult time to say what is best , but add the Beavis note in BLUE from the NEWBIES sticky thread too because that saga continues in a months time at the Supreme Court

and its not APOCA , its APCOA , so ensure there are no typos in your appeal as far as possible

Bats_about

Opps Dyslexia doesn't help with this stuff.

APCOA!! Thanks for the advice RedX

I have been through the Popla appeals, I have chosen one that seems to match what I need. I have added that Popla has been around for 2 years 8 months and and I have also taken out the part where there is obviously someone getting out of the vehicle in the images which means this cannot be adjusting a seat belt or queuing. If this is still felt to be relevant I will place it back.

I want to add in the Beavis bit but there is a contradiction in this as it's mentioned if APCOA try cite 'Parking Eye and Beavis" and then using this in favour of :The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

Maybe I just don't get it but if anyone can help me strip this in again I would be most grateful.

This is the whole thing:

PCN xxxx
POPLA No: xxxxxx

Dear POPLA,

A notice to keeper was issued to me for an alleged contravention within the Birmingham 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 and 8 months 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 fulfill 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. At the start of the “Red Zone” There is a large sign that reads “No Parking” not “No Stopping” again this adds more confusion as parking and stopping are different. Highways allow drop-off and unloading even in no parking zones. This Sign alone means there can be no contract between APCOA and the driver as it conflicts with any other signs.


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 (un-redacted) 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. 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,

Umkomaas

There's over 3,000 words in that appeal. A quick scan suggests there's lots of it that has been superseded by events.

All the Beavis stuff has gone. Now at Supreme Court.

All the £ quotes on GPEOL are more than unlikely to be current now.

Reference to PPS? Too old to quote.

The 'dismantling' of the NtK - are all those flaws in your NtK? Are they even pursuing the keeper under PoFA 2012? I have the impression they were sidestepping this? What does your NtK say regarding PoFA? If PoFA isn't being quoted then the 'not relevant land' appeal point is not relevant!

You need to strip the appeal you've copied right down to what specifically applies to your case.

These are the key points you need to cover - but they need to relate to your parking event. By all means draw from others, but don't copy blindly.

1. No genuine pre-estimate of loss (GPEOL)
2. Signage
3. No Contract with landowner to pursue charges in their own name at court
4. No proprietary interest in the land
5. Unlawful Penalty Charge
6. ANPR Accuracy

And, in the context of what you've so far copied, size (or length) isn't everything.

Also, please read the NEWBIES sticky, post #3 which covers POPLA appeals, as this was only updated last week and includes some new points in light of the present state of the Beavis case.

Coupon-mad

You do need the blue words from post #3 of the Newbies thread. That's obviously why I added them and I thought it was clear, no idea why you think they contradict the appeal? Those words are your safety net. Lots has changed but on the other hand POPLA cases are still very winnable.

Hope you have checked all the stuff on the NTK against the flaws you have quoted about the NTK? And that you never said in the first appeal who the driver was (if you did, you'd have blown the NTK appeal point completely). Hope not because you can say an Airport is 'not relevant land' and there's a recent POPLA decision about that appeal point posted in the 'POPLA decisions' thread only this month, by Edna.

Bats_about

Dear MSE, Redex, Umkomaas and Coupon Mad,

I followed advice from the Newbies as you have stated on all other post about this subject, and I hear the frustration in your "voices" advising on this matter time an time again. I rewrote my Popla appeal going mainly with my gut and the excellent advice on this site.

But before the appeal has even been heard….

I got the ticket cancelled through a strong letter to Birmingham airport. This advice I got right HERE, THANK YOU so much

You people are the BEST!

PS. Never did find the link on the Newbies Post No 3 for the most up to date Popla appeal. Made it up from bits of others and writing my own main beef about signage.

bod1467

Bats_about wrote: »

PS. Never did find the link on the Newbies Post No 3 for the most up to date Popla appeal. Made it up from bits of others and writing my own main beef about signage.

The NEWBIES thread has never had a template POPLA appeal - ever. It has had links (at times) to example appeals, but everyone has been advised to compose their own appeal.

Umkomaas

Good result Bats about, any win is a win!

Care to share some of the detail of your correspondence back and forth between you and Birmingham International? Not verbatim, but a gist - it might give others in your situation some hope/inspiration.

You won't believe the huge contribution you can make with a small input of your experience.

Bats_about

Sure

Here a few of pieces that I think are the most relevant:

At the entrance to the "red zone" is a sign reading "Warning no parking" not " No stopping". Highways allow brief periods of time to load and unload even in a no parking areas. As this is the entrance sign this is all the information a driver will seek when entering the grounds of Birmingham Airport. All other signs within the grounds read "No Stopping" a lack of consistency. There is no info on this sign about "clearway" or the use of ANPR cameras. Here is a except from the BPA CoP about using ANPR cameras:

''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.

This sign can be seen easily on Google's street view.

Also, on the route from the main A45, the route most visitors arrive at the airport on, there are no signs referring to the "FREE" 15 minute drop off location in car park 5, there is no sign like this at the entrance to car park 5 either. However there is a sign clearly giving this vital info that a visitor could read and understand on a far less used approach road. Again lack of consistency in signage.

This sign is also visible on Google's street view.

I did the usual rant about APCOA's signs within the grounds that are way too cluttered and unclear (which is true) and the amongst the rest of the Airport signage, they get completely lost (which is also true). They cannot be read unless you stop to read them, and the first ones you come across does not face the on coming traffic and are set too high for a driver to take there eye off the road for that amount of time. This is also true. I think, but I'm going off memory here, the the first one is set right next to a zebra crossing which is what would have your attention rather than a sign set on the opposite side of the road, high and with a load of garbled info on it.

I went to the airport to see all these points for myself on a motorbike. That's how I got all this info.

I really hope that this information helps someone else as the info on this board helped me. No one should be allowed to get away with this kind of profiteering.

I know that if your reading this, this information probably comes too late but use the "FREE" 15 min drop off point in car park 5 to save all this ridiculous hassle.

Umkomaas

Thanks very much for that. A great bit of detective work and a clearly presented argument to the airport. And I must say a sensible response from the airport. Perhaps they are being more customer focused than the likes of Liverpool John Lennon, Robin(g!) Hood Doncaster, Humberside at Hull and Luton airports.

trisontana

More confusion at the airport is caused by the lay-by right outside the Ibis hotel. The hotel says you can use it to drop off or pick-ups. But if you do, then the PPC sharks send you one of their fake fines.