PCN for BHX Airport

superflygal

Thank you so much RedX


SFG x

superflygal

Hi folks,

Had the "appeal unsuccessful" letter from APCOA. It is addressed to Keeper, and says "Dear Driver", (not the name of the keeper)

It doesn't refer at all to the point I raised about the driver having to stop at a zebra crossing. The fact a passenger alighted at this point being irrelevant.

It then says " In response to your comments made in your letter, please note, notices only needto be issued within 14 days if the notice mentions "under protection of freedoms act". According to British Parking Association guidelines the maximum permitted time to notify the keeper is no more than 28 daysafter receiving keeper data from DVLA which takes no more than 35 days"

They obviously don't understand I am citing the POFA to exercise my right to not disclose the drivers name.

They quoted Beavis vs ParkingEye where PE won. Based on this, they do not agree that £100 is not a genuine pre-estimate of loss.

POPLA code given.

They also say "As your vehicle was parked in contravention of the terms and conditions of the car park, we are satisfied the notice was correctly issued in accordance with the BPA code of practice, and are therefore unable to waive this charge on this occasion."

The 3 photos show the car stopped at the crossing for 4 seconds, and another photo 35 seconds later, which is a close up of the car (but can't see any details around it, no red lines) can see the drivers hand on steering wheel only. so the accusation of "parking" was for 39 seconds.

The person driving genuinely didn't see any signs.

A generous offer to just pay them £50, or if I appeal, £100.

Enclosed is a generic letter from BHX aiport authorising APCOA to charge.

So off to POPLA!

SFG x

superflygal

PS they enclose a picture of a notice, which shows the MAGLEV rail track above it, nowhere near the alleged contravention! Totally on the other side of the terminal, and would only be visible only after the driver had driven to the other side of the airport loop.

superflygal

A notice to keeper was issued on 15 January 2016 and received by me (the registered keeper of vehicle registration XXXXXXX) on 18 January 2016 for an alleged contravention of dropping off/picking up outside a designated parking area. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons:


1) Amount demanded is a penalty- not a genuine pre-estimate of loss.
2) Misleading and unclear signage.
3) No Grace Period Given (Clause #13 BPA Code of Practice).
4) Not relevant Land under POFA 2012; no registered keeper liability.
5) No reasonable cause for requesting keeper details from DVLA.
6) No landowner contract nor legal standing to form contracts or charge drivers.
7) Photo Evidence shows driver was obliged to stop at Zebra Crossing.
8) No proprietary interest in the land.
9) Authenticity of photographic “evidence”.
10) The driver had stopped at a crossing, not “Parked” as APCOA claim in their letter.

superflygal

1) The amount of the charge is disproportionate to the loss incurred by APCOA Parking Ltd and is punitive, contravening the Consumer Rights Act 2015. Therefore a penalty charge and not a genuine pre-estimate of loss.
2) Misleading and unclear signage. The alleged contravention, according to APCOA, is in 'breach of the terms and conditions of use of the Airport road infrastructure and signs are clearly displayed'. It would however appear, that signage at this location does not comply with road traffic regulations or their permitted variations and as such are misleading - they are unable to be seen by a driver and certainly could not be read without stopping, and therefore do not comply with the BPA code of practice.
The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear nor ample, and the motorist had no time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.
I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: ''It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it.''
3) As per section 13 of the BPA Code of Practice - ‘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.’
Given the point of ambiguous signage (Challenge 2, above), including small sized font, it is unreasonable to expect a driver to be able to read the entire signage (let alone see it) while driving during dark hours. Therefore, if a driver stops for a short period of time to read a sign, they MUST have the opportunity to leave and not accept the terms of an alleged ‘contract’. According to APCOA’s evidence which shows the driver stopped for 4 seconds at a Zebra Crossing I would argue does not breach a fair ‘grace period’, and therefore APCOA are in breach of the BPA Code of Practice.
4) Airport land is not 'relevant land' as it is already covered by statutory bylaws 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 put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws.

superflygal

5) The BPA code of practice also says '20.14 When you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; Therefore, this does not comply with the BPA code point 20.14.
6) I believe there is no contract with the landowner/occupier that entitles APCOA Parking Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to APCOA Parking Ltd to prove otherwise so I require that APCOA Parking Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between APCOA Parking Ltd and the owner/occupier, containing nothing that APCOA Parking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.
7) According to the “evidence” produced by APCOA, the driver was stopped at a Zebra Crossing, as people were using the crossing to cross the road safely. The fact that a passenger exited the car at the same time is irrelevant as the driver was forced to stop anyway for safety reasons. The stopping time according to the two photographs depicting the exiting passenger was 4 seconds. The third photograph shows a moving vehicle taken at a different location 39 seconds later. So again, I would reiterate that the £100 charge is punitive and disproportionate to any claimed loss; the car was under obligation to stop anyway.
8) I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give APCOA Parking Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, APCOA Parking Ltd's lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require APCOA Parking Ltd to demonstrate their legal ownership of the land to POPLA.
9) I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on-top of the photos in the upper right hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking meter data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged (See <Daily Mail Article on UKPC doctoring photos> for more information).

I would challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge APCOA that they possess the technology to generate these precise type of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

superflygal

10) APCOA refer in their rejection to the appeal as “your vehicle was observed parked on a red route”. I would vehemently this ludicrous claim and reject that stopping at a zebra crossing to in any way be classed as “parking”.

I therefore request that POPLA uphold my appeal and cancel this PCN.
Yours faithfully

superflygal

I have used most of WOWMAN's points from his Luton APCOA appeal, so thanks WOWMAN!

Sfg x

superflygal

I'm off to work in a bit. Please could anyone advise if this appeal is ok and good enough to go as it is? Thanks a million!

superflygal

Guys is that appeal (above ) good enough do you think?

Many thanks again!


Sfg x