APCOA Birmingham Airport PCN at Ibis Hotel Layby

trisontana

After stopping at that hotel I can confirm that the camera van positions itself across the road from the hotel at the entrance of the multi-story car park.

Imnoexpert_2

Hi

I am the poster of the thread on pepipoo and am putting my appeal to popla quite soon - I still need help! Like you I am a bit shaky on the best way to do this. Please feel free to compare notes and pm me.

You are right APCOA seem to be reading our letters, and/or these posts and sharpening their act by doing things like attaching a facsimile of a letter from BIA describing their agreement, and now it seems adding a map (which they didn't on mine). They seem to be trying to get round POFA by not mentioning it, saying this doesn't break BPA code, and thus they don't have to follow it.

I think the protection of freedom act should be protecting the keepers freedom from unconscionable and unfair charges, harassment, and poor business practices, they think it protects their freedom to make a fortune!

This lay bye must be a real cash cow for APCOA and there are a number of threads which discuss it. All their bluster is at present an elaborate device to put more pressure on you to pay.

At some point maybe they will take a case to court claiming they had reasonable cause to request information from DVLA without using POFA, and that in the balance of probability the keeper was the driver, but it would be a big risk for them.

I have wasted more time on fighting this than it's worth. Paying would have been easier. If I wasn't in a position to spend the time and have the money to pay for a court case if it comes to that it may be different.

I wonder

Has anyone spoken to the Hotel?
Has anyone written to BIA?
Has anyone challenged DVLA?
Has anyone been to Trading Standards?

When we win at POPLA or in court wouldn't it be good if we all took them to small claims for damages for the time we have spent.

Sorry about the rant! I'm just angry.

Happy New Year

Coupon-mad

These are easy to win at POPLA. No keeper liability etc., usual stuff. APCOA normally throw in the towel against a long, strong appeal.

HO87

As has been pointed out several times in this thread POFA does NOT apply at Birmingham Airport because the area around the airport is covered by byelaws. POFA applies only to "relevant land" which does not include areas where byelaws are in force. In addition to which APCOA have not sought to use POFA at the location for at least 18 months.

As C-M states this is an easy win at POPLA provided you follow the script.

trisontana

The big question to ask is about the status of that so-called layby . Can vehicles stop there to drop people off at the hotel? (some websites say you can), or is it a complete no-no? If the latter than it should be filled in to stop this money trap lining the pockets of the parking company.

Travel4life

Hi guys

I've finally drafted my POPLA appeal. It is a combination of 2 recent appeals as follows:

hxxp://forums.moneysavingexpert.com/showthread.php?t=5364943&highlight=ibis

hxxp://forums.moneysavingexpert.com/showthread.php?p=69623967&highlight=airport+popla# post69623967

The amount of time I've spent researching and reading and drafting, I think it would have been better to pay off the £50 fine, but now that I've opened that door, I think I should see it through. Plus I'd love to win this case now...

I've combined the two above appeals to form mine, with some minor modifications e.g. removing the ANPR point as there no mention of it in my letters, rather a "vehicle monitoring and enforcement operation". Also the contravention is for "alleged contravention of dropping off / picking up outside of a designated parking area" and not necessarily "stopping" or "parking"

Please can you read my draft and advise me if it's ok or what amendments are needed. I'm mindful that I've combined two appeal so there may be overlap.

It seems from my reading of past cases that APCOA are filling in the gaps of appeals made against them so there's not as many holes to attack anymore e.g they now clearly state at the top of the PCN themselves being the creditors. Also, in my PCN, theyve got photos of a handsome human with a suitcase appearing to be walking around the car in question, so its not possible to say that a "stop" was not made

---

Dear POPLA assessor,

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

I am the keeper of the vehicle with registration number xxxx. On 01/12/15 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 16/11/15 at 11:46:00. The letter from APCOA was dated 25/11/15, some 15 days after the alleged contravention.

My original appeal, sent via email on 06/12/15 to the operator APCOA, was rejected by letter through the post on 29/12/15, included in the letter was a POPLA verification code.

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

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) Proprietary Interest.

4) Not relevant land as defined by schedule 4 POFA

5) The amount demanded doesn’t represent a genuine pre-estimate of loss

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 PCN does not state how long my vehicle was parked for. The period of parking cannot, and should not be assumed from the images, as the latter only show the time the image was taken.

(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) 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.

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.

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.

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 6 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) 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. 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 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.

4) Not relevant land as defined by schedule 4 POFA

APCOA is registered as an Approved Operator Scheme (AOS) member with the British Parking Association (BPA). In the NTK APCOA have stated that the notice was correctly issued in accordance with the BPA Code Of Practice. This is not correct because paragraph 23 of the BPA Code of Practice states that an AOS member can ‘gain the right to recover unpaid charges from keepers only if particular conditions have been met’ as outlined in Schedule 4 of POFA 2012. However, the “Guidance on Section 56 and Schedule 4 of the Protection of freedoms Act 2012: Recovery of Unpaid Parking Charges” states that Schedule 4 of POFA 2012 does not apply on land where byelaws exist. And byelaws apply on Birmingham airport; therefore APCOA cannot apply Schedule 4 of POFA 2012 so the failure of APCOA to meet the conditions to invoke Keeper Liability means there is no legal basis for the charge to be enforced against me as Keeper.

5) The amount demanded doesn’t represent a genuine pre-estimate of loss

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 £50 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.

This concludes my POPLA appeal.


Yours faithfully,

Coupon-mad

It seems from my reading of past cases that APCOA are filling in the gaps of appeals made against them so there's not as many holes to attack any more.

I beg to differ. You will win, there are loads of holes and I predict they will not contest this appeal.

1(A) I would change 'my' vehicle to 'the' vehicle in case APCOA try to seize on 'my' as some sort of suggestion of a driver. I know, it makes no sense but I would still recommend removing 'my'.

I would put the heading of #5 as:

The amount demanded doesn’t represent a genuine pre-estimate of loss and the case can be easily distinguished from ParkingEye v Beavis.

...and add some sentences to show how this non-car park very much differs from the Beavis case, which related to retail premises where an offer of 2 free hours was deemed of significant value, such that there was an element of justification in order to ensure a turnover of spaces, to then charge £85 thereafter.

By contrast, this situation is nothing like the 'PE v Beavis' reasoning. It is a high charge, set at the maximum, merely to punish and there was never an agreed contract. It is a classic, disproportionate penalty which (in the absence of any agreed contract) can only be deemed to arise not under contract but under the tort of trespass, levied by a non-landowner. Such penalties remain unenforceable due to the long-established and still relevant 'penalty rule', as was in fact confirmed in Beavis where the matter of contract, rather than tort, was vital:

97 ''As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass...''

Lord Mance at 190: ''Mr Beavis... was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract.''

Travel4life

Any further replies or advice?

I'm looking to send this out tomorrow.

Thanks.

Ralph-y

have to taken CM's advice ?

you will not get better .....:)

wait and see if any one else wants to chip in .......

but

do not miss deadlines !

good luck

Ralph:cool:

Travel4life

Coupon-mad wrote: »

I beg to differ. You will win, there are loads of holes and I predict they will not contest this appeal.

1(A) I would change 'my' vehicle to 'the' vehicle in case APCOA try to seize on 'my' as some sort of suggestion of a driver. I know, it makes no sense but I would still recommend removing 'my'.

I would put the heading of #5 as:

The amount demanded doesn’t represent a genuine pre-estimate of loss and the case can be easily distinguished from ParkingEye v Beavis.

...and add some sentences to show how this non-car park very much differs from the Beavis case, which related to retail premises where an offer of 2 free hours was deemed of significant value, such that there was an element of justification in order to ensure a turnover of spaces, to then charge £85 thereafter.

By contrast, this situation is nothing like the 'PE v Beavis' reasoning. It is a high charge, set at the maximum, merely to punish and there was never an agreed contract. It is a classic, disproportionate penalty which (in the absence of any agreed contract) can only be deemed to arise not under contract but under the tort of trespass, levied by a non-landowner. Such penalties remain unenforceable due to the long-established and still relevant 'penalty rule', as was in fact confirmed in Beavis where the matter of contract, rather than tort, was vital:

97 ''As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass...''

Lord Mance at 190: ''Mr Beavis... was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract.''

Many thanks for your response