APCOA Birmingham Airport PCN at Ibis Hotel Layby

Travel4life

I'm on the POPLA website and it's asking me to select an option for the reason why you are appealing your parking charge. The options are:

- my vehicle was stolen
- i was not improperly parked
- the amount requested on the pcn is not correct
- i was not the driver/registered keeper
- extreme circumstances prevented me to park correctly
- other

it also says the last 2 options are less likely to be successful.

which one should I select for my appeal??

"i was not improperly parked" or "other"?

or another? im not quite sure.

Would appreciate your guidance.

thanks.

Coupon-mad

Other. As post #3 of the NEWBIES thread tells you:

''Do not name the driver at the final hurdle. Just submit your appeal as a PDF under 'other' on the POPLA website and don't post it. DO NOT try to answer POPLA's questions because that can make a person slip up and say 'my permit' or 'I didn't see the signs' which gives away the driver. NONONO!''

https://forums.moneysavingexpert.com/discussion/4816822

Post #3. Don't answer the POPLA questions. Just submit a PDF full appeal under 'other' with just a line or two in the box, written as the keeper. Come back if you get an evidence pack to rebut.

HTH

Travel4life

I couldn't wait any longer and submitted it under "I was not improperly parked" and then clicked on the "Other" sub-category on the next page, before attaching the pdf'ed letter.

Watch this space for an update.....

Cheers all for your input so far....

I'm hoping this is a win....

Travel4life

Coupon-mad wrote: »

Other. As post #3 of the NEWBIES thread tells you:

''Do not name the driver at the final hurdle. Just submit your appeal as a PDF under 'other' on the POPLA website and don't post it. DO NOT try to answer POPLA's questions because that can make a person slip up and say 'my permit' or 'I didn't see the signs' which gives away the driver. NONONO!''

https://forums.moneysavingexpert.com/discussion/4816822

Post #3. Don't answer the POPLA questions. Just submit a PDF full appeal under 'other' with just a line or two in the box, written as the keeper. Come back if you get an evidence pack to rebut.

HTH

Oh NOOOOO!!

This was literally 30 seconds after I submitted!!

I'm hoping this doesnt backfire on me.

Man I'm such a NEWBIE, ive read the NEWBIE thread so many times and didn't follow this last bit after all the hours I've put into it!!!

The_Deep

I would not get too stressed about it. The layby is clearly signed "Hotel Drop Of"f, they have lost nothing, Beavis cannot apply, and the signs almost certainly do not amount to a contract.

gaily66

hi I am trying to finds the template to send newbie template letter to APCOA new to this site so if you could direct me that would be fab thanks in advance

TEST

Can you please paste the final draft of your appeal and also let us know the appeal result.

thanks.

Coupon-mad

gaily66 wrote: »

hi I am trying to finds the template to send newbie template letter to APCOA new to this site so if you could direct me that would be fab thanks in advance

You just click on the 'Parking tickets, Fines & Parking' words at the end of the breadcrumb trail at the top of the forum page where the small blue writing along the top - placed below the banners - says Home>Forums>Household & Travel>Motoring>Parking tickets, Fines & Parking.

Or just go back to the forums home page and click on the parking forum and then read the top threads.

When you registered here, there's a video about how to use the forum.

Travel4life

*UPDATE*

Hey people

I hadn't gotten round to give you an update but....

*MY APPEAL WAS A SUCCESS THROUGH POPLA!*

In the middle of March I received a response from POPLA with the following appeal result:

Decision Successful
Assessor Name Robert Harrison

Assessor summary of operator case:
The operator has not provided any evidence.

Assessor summary of your case
The appellant states that the parking charge notice is not compliant with POFA 2012. That the signage on site is inadequate. That the operator has no proprietary interest and that the parking charge is not a genuine pre-estimate of loss.

Assessor supporting rational for decision
By issuing the appellant with a Parking Charge Notice, the operator has implied that the appellant has not complied with the terms and conditions of the car park in question. It is the duty of the operator to provide evidence to POPLA of the terms and conditions that the appellant did not comply with. In this case, the operator has not provided any evidence to POPLA. As the operator has not provided a response to the appeal, it has not demonstrated that it issued the Parking Charge Notice correctly.

So basically APCOA couldn't be bothered with the time and effort of responding to my appeal.

Very happy with the result as I invested a lot of hours into this to save £50.

It was more about the moral victory in the end!

Many thanks for all your help here. Couldn't have done it without you.

Let this serve as an aid for future people being ripped off by APCOA.

FINAL POPLA APPEAL SENT in letter form:

<Name>
<Address>

<Date>



Dear POPLA assessor,

Re: APCOA PCN, reference No. <Insert> and POPLA reference No. <Insert>

I am the keeper of the vehicle with registration number <insert>. On <date> 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 <date> at <time>. The letter from APCOA was dated <date>, some <number of days> days after the alleged contravention.

My original appeal, sent via email on <date> to the operator APCOA, was rejected by letter through the post on <date>, 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 and the case can be easily distinguished from ParkingEye v Beavis.

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 the 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 and the case can be easily distinguished from ParkingEye v Beavis.

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.

Additionally, this case can easily be distinguished from the ParkingEye v Beavis case, as this is a non-car park case 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.''

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,

<Name>

Airgunner

Hi Every1

I've just joined this forum today just to say a big thank you to every1 on here whom have given advice on beating APCOA.
I had a similar case as Travel4life and by reading through the forum and getting the information together I was able to get my POPLA Number and then procede with Travel4life's appeal letter which I sent in on Mon 17th Oct and the very next day POPLA emailed me with this reply.

[FONT=&quot]Dear xxxxx[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Thank you for submitting your parking charge Appeal to POPLA.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]An Appeal has been opened with the reference xxxxxxxxx.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]APCOA Parking have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.[/FONT]

[FONT=&quot]Yours sincerely[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]POPLA Team
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]So again a big thank you to you all, keep up the excellent work[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Best Regards[/FONT]
[FONT=&quot]Airgunner
[/FONT]