NTK - APCOA Twyford Station

dunmol

Hi ,

My wife received a NTK from ACPOA for FGW04 - Not a Parking Area. asking for 100GBP. This followed a notice on the car from 09Dec15 which was ignored.
I plan to appeal to APCOA , fully expect this to be rejected and then appeal to POPLA.
Couple of questions.
I am correct in thinking that since a recent court case there is less chance of POPLA upholding an appeal for not a reasonable estimate of loss ?
Secondly as this is a railway carpark do ACPOA need to prove this is relevant land ? There is no mention of byelaws on any signs in the car park , the original notice on the car or the NTK. At no point have we named the driver so can my wife be held responsible as the registered keeper ?
Does anyone know if APCOA have an online appeal system ? the NTK would suggest they ony accept written appeals.

Draft first appeal to ACPOA below. Any assistance welcome ! Thanks

[FONT=&quot]Dear Sir/Madam

With reference to :

I have received your invoice for an alleged breach of your parking infringement through the post.

[/FONT]I am unable to confirm at this stage if I was the driver of the vehicle at the date shown but the car is registered to myself. I cannot bring to mind any action of mine that may have contributed to the alleged contractual contravention and cannot remember entering into any parking contract with you.
[FONT=&quot]I do not generally respond to speculative invoices or mail shots asking me for money.[/FONT][FONT=&quot] Please provide me with the following information for further consideration:[/FONT]

1. [FONT=&quot]name of the landowner where this parking facilities are located;[/FONT]
2. [FONT=&quot]proof of your rights to make a contract with a driver on behalf of the landowner, including details of the applicable terms and conditions for the contract between[/FONT][FONT=&quot] yourself and the landowner, supported in writing from the landowner;[/FONT]
3. [FONT=&quot]proof of your ability to take legal action on behalf of the landowner supported in writing from the landowner;[/FONT]
4. [FONT=&quot]As per the Government's Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges - I need to have from you a detailed breakdown of a true pre-estimate or an actual loss that the landowner has incurred as a result of the alleged breach. Please note, this must not include your or the landowner's business running costs.[/FONT]
5. [FONT=&quot]Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. Please provide evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.[/FONT]
6. [FONT=&quot]Lastly, you need to state which basis you are claiming this charge on - is it a breach of contract, losses, penalty or a contractual charge.[/FONT]

[FONT=&quot]I require you to address all the above points before I would consider any further action. If you feel you are unable or unwilling to provide the required information please either cancel your invoice of provide me with a validation code for POPLA to take this matter further.[/FONT][FONT=&quot]

I would like you to note that this case will be defended should a court action arise. Any related expenses incurred in dealing with your speculative invoice would be included in my claim.

Yours faithfully,[/FONT]

Coupon-mad

Does anyone know if APCOA have an online appeal system ? the NTK would suggest they ony accept written appeals.

I think it was a written appeal last time I submitted one. Take the envelope to a PO and get a free certificate of posting and keep it. The appeal MUST be from the keeper so this appeal must be in your wife's name (the person who got the NTK).

Not sure why you are using that version appeal although it look OK and might cause APCOA to cancel early, although I doubt it. You could equally use a shorter version like the one in the NEWBIES thread because it's usually just an exercise to get a POPLA code and then win.

You are right that there is no keeper liability at a train station if byelaws apply regarding the parking of the car.

I am correct in thinking that since a recent court case there is less chance of POPLA upholding an appeal for not a reasonable estimate of loss ?

Yes - sometimes* - but there are plenty of other winning points. Can't see your wife losing this at POPLA if you come back and make sure she also rebuts any POPLA evidence pack later on.


* Was this a P&D car park and they are alleging no 'pay' or no 'display'? That's a far more simple financial contract than Beavis was argued to be. So with some detailed information included at POPLA stage, your case is still arguable regarding GPEOL. It's an easier sort of case to distinguish from Beavis at POPLA stage (see examples in post #3 of the NEWBIES thread where the poster 'salmosalaris' has done some great work to write out rebuttal arguments for P&D situations).

dunmol

Cheers, i had paid and displayed , the contravention was for not parking in a parking area. I will use either mine or the one in the newbies thread, as you say , its just for getting a POPLA code. Will update the thread after i hear back from APCOA , no doubt rejecting my appeal.

Coupon-mad

Your wife's appeal of course.

dunmol

Any idea where i can find out if byelaws apply to this car park?

dunmol

Yes, my wifes appeal !!

dunmol

As suspected response from ACPOA rejecting my appeal. They have included a letter from GWR giving ACPOA autorisation to undertake parking control and enforcement on GWR sites. They also quote Beavis and that my appeal that this is not a genuine pre esimate of loss is not a suitable premise to base an appeal on.
There is no mention anywhere in the letter regarding the byelaws on railway land, i think this is my best point of my wife's appeal to POPLA ?
They haven't proved that this is 'Relevant Land' .
I will draft a popla appeal and post for input.
Any advice welcome !

The_Slithy_Tove

dunmol wrote: »

They also quote Beavis and that my appeal that this is not a genuine pre esimate of loss is not a suitable premise to base an appeal on.

They are wrong there, as they are wrong on so many other counts. The PE v Beavis case was specifically based around getting maximum turnover of vehicles in an otherwise free car park. In a station car park, where you pay for the amount of time you stay, there is no need for vehicle turnover, no "promise to leave" after a certain time. The Supreme Court judges even made such a point. Therefore Beavis does NOT apply. And anyway, parking in an "unauthorsed" place constitutes a trespass, an entirely different matter.

dunmol wrote: »

There is no mention anywhere in the letter regarding the byelaws on railway land, i think this is my best point of my wife's appeal to POPLA ?
They haven't proved that this is 'Relevant Land' .

One of many points that you will make. Whether they mention Byelaws or not, the land is covered by Byelaws which makes it not Relevant Land, therefore the keeper cannot be held responsible.

I assume they've given you a POPLA code.

dunmol

Yes, i have a POPLA code, they are unaware of the driver , so i'm hoping that this should be a straight forward keeper can't be responsible as land is covered by bye laws case.

The_Slithy_Tove

dunmol wrote: »

should be a straight forward keeper can't be responsible as land is covered by bye laws case.

Should be. However, this is the new POPLA we are talking about, and it is yet unproven how they will respond to the various challenges that are used. Therefore, you need to do a full POPLA appeal with ALL the points that have been used in the past. Only one needs to win for your appeal to win.

dunmol

Draft POPLA appeal below.

I am the registered keeper and this is my appeal , based on the points below.

1) Railway Land Is Not ‘Relevant Land’
Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.

2) No contract with the driver
Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award APCOA could seek would be damages. As there was no damage to the car park there was no loss to them or the landowner at all and therefore there should be no charge.


3) The charge is not a genuine pre-estimate of loss
This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.
The recent Beavis case was specifically based around getting maximum turnover of vehicles in an otherwise free car park. In a station car park, where you pay for the amount of time you stay, there is no need for vehicle turnover, no "promise to leave" after a certain time. The Supreme Court judges even made this exact point in the Beavis case. Therefore Beavis does not apply in this instance.



4) Lack of standing / authority from landowner
APCOA has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put APCOA to strict proof of the contract terms with the actual landowner (not a lessee or agent). APCOA have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that APCOA are entitled to pursue these charges in their own right.

I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.



5) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:

'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I therefore respectfully request that my appeal is upheld and the charge is dismissed.