ACPO PCN Birmingham airport - is there a timeline for notification for PCN?

53SW

In October I received a PCN from APOCA for pulling into a layby adjacent to a hotel and dropping off a passenger who was not destined for the hotel, time taken less than 1 minute. The PCN issue date is 24 days after the incident, I cant remember the exact date received but the letter is dated was Saturday 10 Oct, it would not have been received until around 3 days later, assuming that it was actually put in the post on the Saturday.

I read a lot of the advice on the "newbies" threads and challenged the charge using some of the template wording I found on the threads, there was no admittance of who the driver was; I have since received notification that the appeal has not been upheld and a POPLA number has been issued.

While looking again through the forums for advice on how to word the POPLA appeal I read one thread which referred to a PCN being received more than 14 days after the incident, which had subsequently been withdrawn by APOCA on appeal based on the timeline.

My questions are:

1) Is there a time limit for receipt and if so what is it?
2) If I have already received a POPLA appeal number can I still go back to APOCA to appeal their decision based on the timeline (assuming it is not greater than 27/28 days).
3) If there is no timeline or the notice I received was within it, could someone point me in the right direction of recent appeals where the alleged offence was similar to mine - I have spent a long time looking but there are so many links and old threads pre Beavis I am unsure what to include and exclude.

I appreciate I did stop for a very short time and having looked at the photos APOCA provided there is a sign (white with black writing and picture of camera saying CCTV and number plate recognition in operation) (also some other wording white on red warning of a £100 charge), and had the charge been more proportionate I would most likely have paid up immediately, however there is an initial charge of £50 if I pay now rising to £100 if I take it to appeal via POPLA, which is completely disproportionate for the short period I was in the layby, I also did not park as my engine was left running, so I feel its a matter of principle that I should not have to pay such a large sum for such a minor offence.

Any advice or links to recent and relevant posts would be much appreciated.

The_Deep

Was this the drop off between the Ibis and the Etap? If so there is another current thread about this.

Coupon-mad

Beating APCOA at POPLA is one of the easiest ones to do, especially if you have not named the driver. With one I did last month (written pre-Beavis) for Luton Airport, APCOA threw in the towel POST Beavis, because they couldn't have rebutted half of it, I suspect, or could not waste the man hours (who cares why they give up as long as they do).

My questions are:

1) Is there a time limit for receipt and if so what is it? Day 15 if they want to hold you liable as keeper. Don't get me wrong, a later PCN is not 'illegal' it is merely one that's non-POFA. This is in the newbies thread already and IS in the POFA 2012 linked there.
2) If I have already received a POPLA appeal number can I still go back to APOCA to appeal their decision based on the timeline (assuming it is not greater than 27/28 days). OMG don't do ANYTHING except POPLA. You have a POPLA code so now go win it.
3) If there is no timeline or the notice I received was within it, could someone point me in the right direction of recent appeals where the alleged offence was similar to mine - I have spent a long time looking but there are so many links and old threads pre Beavis I am unsure what to include and exclude.

Start with an APCOA Airport POPLA appeal version from 2015 as your base. Find it by searching 'APCOA POPLA Airport'. That will be a good start.

Then, refer to the recent posts about what to adjust, post Beavis (by the way IMHO that does NOT mean removing 'no GPEOL' completely, just arguing it differently!). Basically a firm still has to show the charge was based upon a GPEOL unless they are not saying it relates to 'damages for breach' and unless they are adept at showing there was another commercial justification. So you just adjust the GPEOL argument - and you need to read the PCN and rejection letter, have they shot themselves in the foot by saying their charge IS 'liquidated damages' for 'breach' (or similar). If so, they can't change their story now.

Your job at the start of the appeal will be to state why your case differs from the Beavis case. Kind of easy when you think:

His was a free car park, it was retail with a 'valuable consideration' to the space, it was a place where there was a licence to park, he was an admitted driver so could not rely on the POFA, he didn't deny or raise as an issue anything about signage, it was not claimed anywhere in his defence that he had NOT accepted the terms, the car park involved a convoluted business arrangement with the parking firm paying £1000 per week for the dubious 'right' to sue the pants off the retail customers - and PE did NOT argue the charge was related to damages for breach.

53SW

Hello - yes it was in that drop off by Ibis, I have found one old thread where the person was advised to challenge on the basis of it being just that, a drop off point, and that you would have to stop just to read the sign(s), I will include this in the POPLA appeal. I have not found anything else but if you have a link to more info I can include in my appeal that would be great.

I would like someone to check over my draft appeal when I have typed it up, is it okay to cut and paste it into this thread or is there somewhere else on the parking forum that I can put it (I have seen quite a lot of drafts in other threads which people have been helped with)?

Coupon-mad

Yep you can put your draft here.

I have not found anything else

...except the recent POPLA appeals on here you can use to crib from, by searching 'APCOA Airport POPLA'. Makes it easier for you to copy from one them make changes here.

Don't just submit it to POPLA, there is no hurry as you have 28 days. Things need changing now about some arguments such as 'no GPEOL' which needs to be worded differently to also knock out commercial justification.

53SW

Here is my first draft, its mostly been cribbed from other successful appeals - I am not sure that all of my arguments are correctly stated as I found both the POFA and BPA rules/CoP to be confusing, especially in relation to the timing of the notice, also `i am unsure whether to refer to APCOA documents as PCN or Notice to Keeper. Any feedback would be welcome. My deadline is 16 Dec.

***********************************Dear POPLA assessor,

Re: APCOA PCN, reference No. xxxxxxx and POPLA reference No. xxxxxx

I am the keeper of the vehicle with registration number xxxxxx. On 15/10/15 I (registered keeper), received by Royal mail a Parking Charge Notice (PCN), demanding a Charge of £100 from APCOA, due they state, to contravention of dropping off/picking up outside of a designated parking area at Birmingham airport on 16/09/15 at 12:59:00. The letter from APCOA was dated Saturday 10/10/15, some 22 working days after the alleged contravention.

My original appeal, sent via email on 17/10/15 to the operator APCOA, was rejected by email on 19/11/15, included in the email was a POPLA verification code.

I am not liable for the alleged Charge for the following reasons:

The grounds for this appeal are the following:

1) A non-compliant and erroneous PCN failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, and BPA Guidelines/code of practise (of which APCOA is a member), and therefore there is no keeper liability.

2) The signage on the possible site is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.

3) The ANPR system is unreliable and neither synchronised nor accurate.

4) Proprietary Interest.

1) A non-compliant and erroneous PCN failing to meet the conditions of Schedule 4 of POFA 2012, and BPA (of which APCOA is a member) Code of Practise, and therefore there is no keeper liability.

In order to pursue Keeper Liability under the POFA, APCOA must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the PCN as per paragraph 7/2/a and paragraph 9 Schedule 4 of the Act, and BPA section 20.12 Codes of Practice.


The PCN is non-compliant under the POFA 2012 for the following reasons:

(A) The period of parking is not specified in the PCN which states the contravention took place at 12:59:00; the CCTV photograps received from APCOA show the vehicle in what they refer to as a drop off zone, but is in fact a layby, at 12:59:44 and at 13:00:33 moving out of the layby, a total of 49 seconds, there is no evidence of parking.

(B) The PCN fails to set out any unpaid parking charges for the specified period of parking. POFA requires that a PCN describes any unpaid charges which the driver owed at the time of the issue of the postal PCN.

C) A charge for breach of contract cannot be described as unpaid by the driver at the time the PCN is issued, because it only arises at the time the PCN is received. The punitive amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA. The Act requires any unpaid tariff that the driver owed before the PCN was issued to be stated, and that this is the only sum that can be pursued from a registered Keeper.

(D) The PCN does not identify the Creditor. The fact that an Operator's name is on a PCN as the payee, does not identify them as the Creditor, as administrative functions such as sending notices and collecting monies can be carried out by other parties. The Creditor has to be identified with words to the effect 'The Creditor is...'.

(E) It also fails to show the geographical address of the client/Landowner. This is a requirement for all consumer contracts, as well as being a breach of the POFA. The
PCN names the relevant land on which the vehicle was allegedly parked as “Birmingham Airport”. Not only is this incorrect, but it is not even a valid and fully-formed address and fails to specifically identify the alleged location and/or the land of the supposed parking event and subsequent Charge.

(F) Section 4/Section 9 of POFA states:

“The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.”

In this case the 14 day notice period was not met.

The requirements of Schedule 4 of the POFA as regards the wording in a compliant PCN to be prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out any of the mandatory wording, means there is no Keeper liability. This point alone invalidates their PCN for lacking clear and concise information relating to the alleged parking event, eliminating their right to claim unpaid parking charges from the keeper of a vehicle under Paragraph 4(2)(a) of Schedule 4 of POFA 2012.

POFA2012 does not apply on airports (ITS NOT RELEVANT LAND) and in this case the Driver has not been identified, so the failure of APOCA to meet the conditions to invoke Keeper Liability means there is no legal basis for the charge to be enforced against me as Keeper.

2) The signage on the possible site is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.

The British Parking Associations’ Code Of Practice (BPA’s CoP) at Section 18 sets out the strict requirements for entrance signage:

“Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read
If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”

A contract between APCOA and the Driver could only be formed at the entrance to the site, prior to entering the layby, when the driver is in a position to decide whether or not to enter the car park.

Upon arrival to the possible site, APCOA have failed to make it adequately clear that stopping in this area is subject to parking management. The signs relating to the layby are located on the pavement within the actual layby, as evidenced by photographs provided by APCOA, therefore the driver would have had no possibility of reading them without driving into the layby and putting the vehicle into stationary mode. There is no possibility of a driver reading the print on the sign(s) while focusing on the road, this layby is on the direct route out of the airport and is a very busy road so stopping to read signs is not an option. I content therefore that it is reasonable to assume the driver pulled into the layby, got out of the vehicle to read the sign (which is not adjacent to driver side of vehicle and therefore could not be read whilst seated in the vehicle) and immediately left the area after realising it was restricted.

The PCN is issued as a parking event, which did not happen; BPA CoP also refer to a “grace period” which clearly was not considered by APCOA as the period the vehicle is shown in photos provided is only 49 seconds, this includes the time taken to move out of the lay-by, therefore this cannot be considered a parking event.

“13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

The signs are not lit or reflective (as per the BPA’s CoP). Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of them and agreed. These factors combine to make the signs difficult to notice and difficult to read. I contend that the location of the signs, the poor lighting, the size of the signs and the print size means it cannot be claimed that the signs are so prominent they ‘must’ have been seen and read by the driver.

I contend that the information set out above clearly shows that the signs APCOA are relying on were not sufficiently prominent or legible that the driver ‘must’ have seen, read, understood and agreed to their terms prior to pulling into the zone. Terms set out on a sign are not imported into a contract unless brought home so prominently that the party 'must' have known and agreed to them. Nothing about these signs, or the terms set out in them, was sufficiently prominent.

I contend that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance, and fairness and transparency of terms offered in good faith) were not satisfied in this case. I contend that any parking sign within the layby cannot be claimed to establish terms of a contract with the driver, as such signs are not available for a driver to see until they have already entered the layby.

The signs do not state that by parking on the possible site forms a contract with APCOA therefore there can be no possibility of a contract since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with APCOA in this case.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued:

“The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling”.

3) The ANPR system is unreliable and neither synchronised nor accurate.

britishparking.co.uk/How-does-ANPR-work

APCOA is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored and used. I say that APCOA have failed to clearly inform drivers about the cameras and how the data will be used and stored. . I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.

In addition I question the entire reliability of the system. I require that APCOA present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on three images purporting to show my vehicle parking in this layby at specific times, whereas in fact the driver may have pulled in purely to read the signs which are within the lay-by. It is vital that this Operator produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require APCOA to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. As their whole charge rests upon two timed photos, I put APCOA to strict proof to refute all of my points about their flawed ANPR records.

4) Proprietary Interest

APCOA has not provided enough evidence of their interest in the land as they have no legal possession which would give APCOA any right to issue a “£100 fine” which is what this is as there are no parking charges at this layby, let alone allege a contract with third party customers of the lawful owner/occupiers. Neither the road nor the layby are yellow lined, which in any case would be unenforceable due to it not being a public highway. The registered keeper believes there is no contract with the landowner/occupier that entitles them to levy these charges and to pursue them in the courts in their own name as creditor. Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant. Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.

I therefore put APCOA to strict proof to provide POPLA and myself with an un-redacted, contemporaneous, signed and dated copy of the contract between APCOA and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to APCOA. To demonstrate standing and authority, must specifically state that APCOA has the right to make contracts with drivers in their own name, that they have full authority to pursue charges through to court in their own name, and that the Landowner allows APCOA to charge £100 for a stopping contravention. A witness statement to the effect that a contract is in place, which could be signed by someone who may never have seen the actual contract, will not be sufficient because it will not show the terms and conditions relating to the Operator’s authority, nor any restrictions that are in place.

If APCOA wish to rely on any such contract, I require them to show, on a point-by-point basis, that the contract is in complete compliance with all the requirements set out in the BPA Code of Practice.

This concludes my POPLA appeal.


Yours faithfully,

Redx

you keep calling them APOCA and APOCO (and ACPO)

its APCOA , a small but meaningful difference, PLEASE AMEND THE POPLA DRAFT ACCORDINGLY because there are dozens of them

as for POFA2012 , it does not apply on airports (ITS NOT RELEVANT LAND), so this is one of your additional appeal points, especially if you have not named the driver or mentioned who was driving

and you should also include section 13 of the oct 2015 BPA CoP, GRACE PERIODS , where in any alleged parking event the driver has a grace time to comply or leave (say 10 minutes) and a grace time of 11 minutes or more at the end of any alleged parking event anyway (even though no parking event happened, only alleged parking/stopping)

the pcn is issued as a parking event, which did not happen

53SW

Thank you so much for pointing out my error in referring to APCOA as ACOPA all the way through my document, I am mortified I made such a silly error !

I'v made the changes and added in the period of grace you suggested.

Could you advise if the info I have put about the timing of receipt of the PCN is correct (more than 14 days), as I found the legislation cross referencing of between paras really confusing so not sure if its actually 28 rather than 14. Also whether it matters if I refer to their communications as PCN or notice to keeper?

53SW

APPEAL SUCCESSFUL IN RELATION TO BIRMINGHAM AIRPORT/APCOA

Thank you to those who responded directly to my request for assistance and those who have posted their own appeal notices, a number of which I used in part for my own appeal which I learnt today had been successful. The deadline for providing evidence was 31 Dec 15, and I received the decision today 3 March 16, so be prepared to wait a while once your appeal has been submitted.

Here is the summary of why it was successful as detailed in the response from POPLA.

"The operator has provided photographs of the appellant’s vehicle dropping off a passenger at 12:59 on 16 September 2015. The operator has issued the PCN on the basis that the vehicle was dropping off/picking up outside of a designated parking area. The appellant states that the PCN is non-compliant and does not meet the conditions of PoFA 2012. After reviewing the evidence provided by both parties, I am not satisfied that the appellant has been identified as the driver of the vehicle at the time of the relevant parking event. The operator is therefore pursuing the appellant as the registered keeper of the vehicle instead. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act 2012 (PoFA 2012) must be adhered to. As the operator has not provided me with a copy of the Notice to Keeper, I am unable to confirm it has met the requirements of PoFA 2012. As such, I must consider the PCN was not issued correctly. Accordingly, I must allow the appeal."

Redx

well done

please add this above decision and the name APCOA and Birmingham Airport - to the POPLA DECISIONS sticky thread at the top of the forum

we keep telling people that under POFA2012 APCOA have to issue the pcn to the driver, although POFA2012 doesnt apply to airports , hence no keeper liability

Coupon-mad

Hah, APCOA left out a copy of the NTK from the evidence pack. How dumb are they?!