NTK - APCOA Twyford Station

Coupon-mad

A good draft to start us off here. Not bad at all but in our experience, a longer argument will frighten APCOA off quicker.

I would always include a point about 'Unclear signs & lines' probably placed under or merged with your 'no contract with the driver' point. I think I'd merge it because the alleged contract is all about the signs so it's all one appeal point.

Yes there would have been signs of course, but they won't have been 'prominent' and clear (as the signs were found to be in Beavis and nor would the amount of the parking charge (fine) have been in 'large lettering' such that a driver could not avoid knowing about the contract to pay that sum (as in Beavis). And was this non-parking area marked as a red route with double red lines or perhaps with yellow hatched lines and/or signs saying 'no parking/loading'?

If it wasn't crystal clear that this was a no-stopping zone and if the driver paid and displayed anyway - but still read nothing in-your-face at the machine/RingGo sign or at the place they parked, about a huge penalty - then you should say so. State that they did not agree to pay more than the tariff at the machine (or by phone if that was how the driver paid) because the lines & signs were deficient.

That makes APCOA have to argue it back and most likely, they won't bother. They might throw in the towel as I've seen them do before to a long and strong POPLA appeal.

Finally, you've said railway land isn't relevant land but you need a point #2 straight under that in a similar vein ('no keeper liability') saying that even if APCOA are able to show this was relevant land, they have still failed to follow the POFA Schedule 4 paragraph 8. This is because their NTK does not contain the statutory wording required...then quote paragraph 8 and point out where their wording is not spot-on. Be pedantic! It is prescribed wording and 'close' is not close enough.

And not forgetting this is all to be written and submitted in the registered keeper's name.

dunmol

Final Changes before i submit. All ok ?

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 keeper liability
The driver is not known in this case. Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the conditions set out in paragraph 6 of Schedule 4 have not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.
The NTK from ACPOA does not contain the statutory wording required due to the omissions as stated below.

• The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of POFA 2012 in that it does not identify the creditor. The operator is required to specifically "identify" the creditor not simply name them on it. This would require words to the effect of "The creditor is ..... “ The keeper is entitled to know the party with whom any purported contract was made. APCOA have failed to do this and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

• The NTK makes no reference to details of the discount for payment within 14 days. Under the BPA Code of Practice the Discount should be at least 40% of the full charge. APCOA have failed to mention any discount in the NTK and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

• The NTK does not give the time period in which the car was parked, again APCOA have failed to do comply and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.








3) No contract with the driver, inadequate signage

No contract was entered into 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.
The signs were not visible from a distance and the words are unreadable. I put APCOA to strict proof otherwise; as well as a site map they must show photos of the signs as the driver would see them on entering the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties. It was not clear that the area that was used to park was a no parking area. There were no signs or markings of any sort in the vicinity of where the car was parked as can be referenced by the photos from ACPOA.


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

dunmol

I will correct the numbers so i don't have a duplicate number 3
!

Coupon-mad

All good - except the UTCCR 1999 was superceded by the Consumer Rights Act in October 2015. Somewhere there is a thread where a newbie wrote a version based on the CRA, maybe someone can find that for you. If not, search this forum (PARKING FORUM ONLY, NOT THE WHOLE OF MSE) for 'Consumer Rights Act' and you should find an example of a POPLA appeal with the right wording.

dunmol

Currently getting the below on the POPLA site, when trying to start my appeal !!!! I did use the code to have a quick look at the site a couple of days back and it worked fine then.

Application error

An application error has occurred and your request cannot be processed. Please accept our apologies and try again later.

Close

dunmol

Eventually got in on the fifth time of asking. Then it crashed when uploading my appeal document, had to start again and eventually got it submitted. Flaky to say the least.

dunmol

So i have now been emailed ACPOA's response. Below.

There haven't answered the points on no keeper liability due to the NTK not containing the statutory wording or about relevant land. In fact their response seems to tell me that byelaws DO apply in this case.

Should i respond stating that as they have agreed Byelaws are in place that 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.

Also pointing out that they haven't answered the points on no keeper liability due to the NTK not containing the statutory wording.


"The Parking Charge Notice was issued rightfully in accordance with the BPA guidelines. APCOA can confirm that all requirements of POFA have been met when issuing this notice.

The notice was issued directly to the vehicle’s windscreen. APCOA are an approved operator of the BPA. As per their guidelines."

" The Byelaws state that no person shall park where charges are made for parking without paying the appropriate charge in accordance with instructions given by an Operator or an authorised person at that place. This is Byelaw 14(3)
APCOA can confirm that we do not enforce under the Bye-laws.
It is however a requirement to advise drivers that an infringement in the car park “may” constitute a breach. "

pappa_golf

you cannot have bylaws and non bylaws , you can only have one , and if bylaws are in place they take president . the land is non applicable for POFa


they are talking %ollocks and know that bylaws exist

dunmol

Cheers, i will state as much although maybe in slightly different language !!

This is the POPLA evidence pack if i wasn't clear above.

dunmol

How about the below on the byelaws topic ?

The schedule of the Protection of Freedoms Act 2012 states the below in relation to relevant land.

3(1)In this Schedule “relevant land” means any land (including land above or below ground level) other than—
(a)a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b)a parking place which is provided or controlled by a traffic authority;
(c)any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

(3)For the purposes of sub-paragraph (1)(c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.

(4)In sub-paragraph (3) “statutory provision” means any provision (apart from this Schedule) contained in—
(a)any Act (including a local or private Act), whenever passed; or
(b)any subordinate legislation, whenever made,
and for this purpose “subordinate legislation” means an Order in Council or any order, regulations, byelaws or other legislative instrument.

ACPOA are admitting in their evidence that this land has byelaws on it.

" The Byelaws state that no person shall park where charges are made for parking without paying the appropriate charge in accordance with instructions given by an Operator or an authorised person at that place. This is Byelaw 14(3)”

It is quite clear under Schedule 4 of the Protection of Freedoms Act 2012 that land with byelaws on it such as railway land that is subject to statutory controls is NOT relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability'.