Apoca Parking Birmingham Airport

menion52

Hi All
I have received a parking notice from Apoca for stopping in a not stopping zone for 4 secs at Birmingham Airport Based on their photos. I did stop briefly to decide which car parking to use and can proved this evidence.

They initially sent me a notice which was received after 17 days. (I thought that they had to sent this within 14 days?)

I appealed on this basis and they have rejected the appeal stating that they had upto 28 days?

My question is should I take this further and if so on what grounds since i am not sure what to do next.

Redx

yes you should is the simple answer

I asume they included a popla code ?

if so , check its validity and expiry date

its APCOA , not apoca

you look for the dozens or hundreds of similar cases at Birmingham and Luton, choose a recent 2015 one that fits the bill , plagiarise their popla appeal using the usual legal arguments for airports, then submit it to popla before the expiry date

airports are not relevant land, so POFA 2012 does not apply, in which case neither does the 14 day rule as the keeper is not liable where non-relevant land is involved

POFA 2012 can be used as a legal argument in your defence however (keeper is not liable) , so edit post #1 and do not mention anywhere who the driver was or is (no admissions of liability)

no "me , myself or I"

why give away valuable information ?

why admit who was driving ?

do you really want to help their case ?

Coupon-mad

menion52 wrote: »

Hi All
I have received a parking notice from Apoca for stopping in a not stopping zone for 4 secs at Birmingham Airport Based on their photos. I did stop briefly to decide which car parking to use and can proved this evidence.

They initially sent me a notice which was received after 17 days. (I thought that they had to sent this within 14 days?)

I appealed on this basis and they have rejected the appeal stating that they had upto 28 days?

My question is should I take this further and if so on what grounds since i am not sure what to do next.

I seriously hope you used the template appeal from the newbies thread or another well-worded version where you did NOT imply who was driving? I hope you didn't say ' I did stop briefly to decide which car parking to use ...' ? If you said who was driving, you will have just blown the entire appeal point about the 17 days AND the entire appeal point about Airports not being 'relevant land' (BOTH WINNING POPLA APPEAL POINTS), so I hope you can go to POPLA appealing as the keeper only?

POPLA appeals are easy to find by searching - do some homework and you'll find plenty of examples here to crib from.

Try using search this forum (not the whole forums nor MSE articles!) and change the default search to 'show POSTS' (not show threads) putting in keywords like: 'Airport POPLA' or 'APCOA POPLA' (don't misspell APCOA, they are not APOCA).

menion52

Your reference BIANNNNNN

I received a Notice to Keeper dated 01/09/2015 received on 05/09/2015 relating to an alleged incident on 10/08/2015.

As keeper of the vehicle, under the Protection of Freedoms Act 2013, the time limit for serving a Parking Charge notice based upon ANPR evidence is 14 days. (There is a different time scale when a windscreen notice had been issued, but this is not the case here).

Under these circumstances, the keeper (me) is not required to provide you with the name of the driver and you are timed out for pursuing the driver for any charges.

After checking with the relevant sections of the POFA (sections 6, 7 and 9), I expect you to cancel the charge.

Yours Sincerely

This was the letter I send to the first reply.

Can someone please refer me to a suitable template. for the Appeal letter.
Thanks

menion52

The PCN is for stopping in a no stopping zone.

The photographs provided are of my vehicle which shows it in the same place for 4 seconds

The letters also states that it is a restricted zone ans there should be no stopping.

Please advise on how to proceed with this.

Thanks

Redx

if you have a popla code, search the forum for 2015 appeals at Luton and Birmingham airports ands plagiarise one of them (there are no templates)

use this example as it closely fits and is very recent (they cancelled at the popla stage)

https://forums.moneysavingexpert.com/discussion/5339566

please note , POFA is 2012 , as in POFA2012 , not 2013

and read posts #2 and #3 again, they told you what to do and why

menion52

This is the appeal letter I would like to send can someone please check it for any errors.
Thanks

Hi,

PCN No ***********
Vehicle reg: **** ***

By entering into this appeal I am not inferring in any way that I will be bound by its verdict and if POPLA fail to find in my favour I reserve the right to reject their verdict.
I'm appealing against my private parking charge on the following grounds



1. A ‘parking charge’ cannot be applied to a no stopping zone.
2. The amount charged does not represent a genuine pre-estimate of loss
3. No landowner contract nor legal standing to form contracts or charge drivers
4. No contract with registered keeper as per ‘The Consumer Contracts (Information, Cancellation & Additional Payments) Regulations 2013’
5. The registered keeper is not liable for this charge under POFA 2012 as Birmingham Airport is subject to airport bylaws.
6. Notice to Keeper sent outside mandatory timescales for the legislation APCOA are using to bring action (POFA 2012).
7. APCOA are trying to enforce an unfair contract as per ‘Unfair Terms in Consumer Contracts Regulations 1999’ & OFT ‘Unfair Contract Terms
Guidance’
8. Incorrect information on PCN.
9. The PCN breaches the AOS code of practice in a number of areas
1. APCOA have issued a PCN ‘Parking Charge Notice’ however they have stated that the PCN is for ‘stopping on a roadway where stopping is prohibited’. The PCN issued by APCOA contradicts itself, it cannot be a ‘parking charge’ if it is for an alleged stopping offence. The area where the alleged offence took place is not in the airport car park so therefore no parking charge applies. Exactly what is the purpose of the charge? I believe that the charge amounts to an attempt to charge a penalty which is illegal as APCOA have no authority under law to issue a fixed penalty notice.
2. The amount demanded doesn’t represent a genuine pre-estimate of loss, nor is it a core price term nor does it reflect any material damage to Birmingham airport or APCOA. The fact that the charge is none-itemised and given as a round figure to the maximum amount allowed (also with the minimum amount of discount offered for payment within 14 days) under the AOS Code of Practice (Schedule 5) means that this charge can only be interpreted as quite literally no-more than a disguised penalty. Which has been issued in the form of a misleading un-solicited invoice with the aim of maximising revenue for APCOA.

If the charge is an attempt at gaining compensation for a loss to the businesses then it is not commercially justified and has no basis in law to be claimed. The first 10 minutes in the Birmingham Airport pick up / drop off car park is £1; the alleged contravention lasted seconds which is significantly less than 15 minutes and APCOA are demanding payment of £60 for what would have been a charge of £1. Therefore there has been no significant loss to the business.

Therefore the parking charge is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The amount claimed is excessive and is being enforced as a penalty for allegedly stopping. I wish to see a breakdown of the cost calculations relating to this charge; given all of the costs must represent a loss resulting from the alleged breach at the time. Note: the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting an IAS defence. Also losses must not include normal overheads costs incurred by APCOA in the running the business or the manning of the airport premises.

Furthermore APCOA have already previously lost appeals on this point ‘APCOA v Bycroft’ & ‘APCOA v Oughton’. Both cases were at Birmingham airport and both were for stopping momentarily in the same location i.e. both cases were identical to this one and yet again APCOA have failed to provide a genuine pre-estimate of loss. Therefore on this point alone there can be no justification for rejection of this appeal.
3. No landowner contract nor legal standing to form contracts or charge drivers
As APCOA are not the owners of this land and as such they cannot form a contract with the driver, I wish APCOA to provide me with a full un-redacted copy of their contract with the landowner which allows them to form such a contract. A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives APCOA the legal standing to levy these charges nor pursue them in the courts in their own name as creditor.
4. I reject strongly that any contract was ever entered into by the motorist when entering the site and I find it ludicrous that a few poorly designed and positioned signs which can’t possibly be read properly from a moving vehicle can be used as a basis for contract. The signs are adjacent to the main airport roadways therefore a driver can’t stop and read them properly which contravenes the AOS code of practice section 17.1 (Grace Period)
‘Drivers should be allowed a sufficient amount of time in order to park and read any signs in order that they may make an informed decision as to whether or not to remain on the site before any enforcement action is taken by you or your agents’.

As stated the position of the signs do not allow for the above. The amount of detail on your signs and the fact they do not fully face the oncoming traffic means they cannot be read fully from a moving vehicle.

According to the APCOA signage at the airport, the £100 is an ‘Automatic parking charge’ in a ‘no stopping zone’. They cannot offer contract terms for a service which does not exist! There can be no contract to do something that is not permitted. A contractually agreed sum is a fee specified within the terms of a contract i.e. the price to be paid for x amount of parking.
APCOA are attempting to say the charge is a contractually agreed sum but they fail - it isn't.
In order for there to be a contract there must be an offer, acceptance and an exchange of ‘consideration’ between the parties (i.e. each party must receive something of value from the other). If only one party receives the ‘consideration’ there can be no contract.
So it can’t be a contractually agreed fee if what you are being asked to pay for is something that is NOT allowed because, clearly that’s a nonsense and, it fails to establish the essential requirements of a contract because there is no exchange of consideration when you are being asked to pay but get nothing in return.
Because permission to park cannot be granted when parking isn't allowed the parking charge cannot be a contractual price. Instead, the charge is still a sum sought as damages, and therefore must be shown to be a genuine pre estimate of the loss which may be caused by the parking breach. As has already been established in point 1 this has not been carried out.

APCOA have breached the new Consumer Contracts Directive from the EU, specifically the information requirements in the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013:

They failed to serve by 'durable medium' in advance, the geographical address and phone number of their client, since APCOA is acting as an agent of the principle, the owners of Birmingham Airport.

Also they failed to ensure that the contract was 'expressly agreed' which is a requirement of the regulations -agreement can no longer be assumed or implied. It is trite law that a contract read (or in this case, not read) merely from signage leads only to 'implied consent': 'a manifestation of consent to something through conduct, including inaction or silence' or ' Consent that is inferred from signs, actions, or facts, or by inaction or silence.'


Quite clearly express consent (as required by this law) was never given to enter into contract.

Quite clearly express consent (as required by this law) was never given to be subject to additional unsolicited charges which is what this PCN quite clearly amounts to.

So it fails the test of 'express agreement' in advance of a consumer contract, which is now demanded by the EU Directive and current Consumer Regulations i.e.'Express consent is clearly and unmistakably stated, rather than implied.'

It is the will of Parliament, following the recent EU Directives on Consumer Contracts, that UK consumer contracts are now unified in terms of what is required by way of information before the contract is concluded. Also contracts must be 'expressly agreed' so a contract based merely on implied consent from a sign, fails the new statutory regulations:

These Regulations apply to all UK consumer contracts from June 2014, unless they are within the exempt list (which a parking contract is not).
The information to be given to consumers is provided in Schedule 2 (On-Premises) and Schedule 2 (off premises and distance contracts) of the Regulations.''

Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited charge not expressly agreed at all, so this is a breach of the Regulations).

Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Another breach by APCOA

Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract
No payments were expressly agreed in any way.

Information breaches of these Regulations:
This Operator has failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract
''13.—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and
(b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be
provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect off paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.''

Everything that is required by this statute has been omitted, including no information given about the right to withdraw in the case of a distance contract (because this is certainly not one that can be agreed face to face). There is no exemption from this even for distance contracts with limited space or time. Even if this is not considered to be a 'distance contract' the Regulations set out that all Consumer Contracts (except 'exempt' ones which parking contracts are not) require certain information including the geographical address and phone number of the principal, for complaints, where a trader is an agent.

This statutory information was missing and it was not served in a durable medium beforehand, nor was any term 'expressly agreed' so the contract breaches the above statutory regulations.

Regards 13. (1)APCOA have failed to provide ‘the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used,’ The signs contain too much information to be read from a moving vehicle and are positioned alongside main airport roadways so do not allow for motorists to stop and read them properly without blocking the road way. Therefore this is a clear breach of the regulations regarding distance contracts.

The linked Regulations show that a failure to provide the statutory information and to obtain express agreement now renders any UK consumer contract unrecoverable.

Coupon-mad

Have a look at the rejection letter. Does it use the word 'fine'? I have one from Luton Airport where it does and I added in another appeal point re breach of the BPA Code (you'll need to look it up - the one about misrepresentation of authority).

Also when is your POPLA deadline? If it's mid-November, wait for the Beavis v ParkingEye outcome first in case anything vaguely useful comes from that case. DO NOT RUSH THIS.

menion52

The rejection letter states that this is an enforcement charge for stopping in a no stopping zone.

Redx

points 2) and 7) seem to be invalidated by the Beavis outcome

renumber and add a section about clause 13 in the BPA CoP not being adhered too either (grace periods for a parking event , even though it wasnt a parking event)

then wait for further comments if you have the time

menion52

Appeal sent with them amendments suggested will keep you updated.

Thanks