PCN for Birmingham International Airport (APCOA)

nigelbb

hoohoo wrote: »

APCOA have not claimed to, and do not work, issue or seek payment under POFA as this land is covered by Bye-laws.

So it seems APCOA are claiming this under the bye-laws. I think an extra section is therefore needed.

x. From their rejection of my initial appeal, it appears that APCOA are attempting to claim the charge is liable to them under airport byelaws. I reject this and put them strictly to proof on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay APCOA.

I don't think that statement in red does mean that APCOA are claiming a charge is liable under byelaws like those dodgy railway car park claims for a bribe to prevent a byelaw penalty. I think that statement is just stating the facts. They are not using POFA to claim keeper liability because they can't as its not relevant land because byelaw apply. APCOA are confirming that the only possible claim is against the driver & unless the OP has been foolish & named the driver then the identity is unknown. This should be the leading if not only argument in your POPLA appeal as APCOA confirm they have no claim against the keeper.

Unicorn51

Airport byelaws do not apply to any road to which the public have access, as they are subject to road traffic enactments.

Airport Act 1986
65 Control of road traffic at designated airports
.
(1)Subject to the provisions of this section, the road traffic enactments shall apply in relation to roads which are within a designated airport but to which the public does not have access as they apply in relation to roads to which the public has access.


Both the Airport Act and Airport byelaws say that byelaws only apply to roads to which road traffic enactments do not apply.

dazster

Howsoever, APCOA has confirmed it is not using PoFA 2012 therefore a reply along these lines is indicated:

Dear Scum

Thank you for confirming that you are not using PoFA 2012 to apply keeper liability. I note your absurd and false contention that the airport byelaws empower you to maintain keeper liability: this is of course utter nonsense, there is nothing of the kind contained in the byelaws.

I have no intention of identifying the driver of the vehicle at the time in question, and since you cannot hold me liable as keeper you have no reason to retain or continue processing my personal details and I require you to remove them from your systems and records immediately.

I remind you of the fifth principle of data protection per the Data Protection Act Schedule 1:

"Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes."

You have exhausted your purpose in obtaining and processing my personal data therefore you must discard it immediately in compliance with the Act.

Furthermore your intimidating, harassing and misleading communications are causing serious and unwarranted distress to me and my family. This letter therefore constitutes a Section 10 Notice to you objecting to the continued processing of my personal data.

harj1185

Have added in a new paragraph (1), how's this for submission?

Sorry about formatting, I'm on my phone pasting this!

Thanks for all help to date.



POPLA Ref xxx
APCOA Parking PCN no xxx
A notice to keeper was issued on 17th March 2016 and received by me (the registered keeper of vehicle registration xxx) on 22nd March 2016 for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’.

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) APCOA not using POFA 2012
2) Amount demanded is a penalty not a genuine pre-estimate of loss
3) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
4) Not relevant Land under POFA 2012; no registered keeper liability
5) Creditor not identified
6) Misleading and unclear signage
7) Reasonable cause for requesting keeper details from DVLA
8) No landowner contract nor legal standing to form contracts or charge drivers
9) Photo Evidence appears doctored
10) No Grace Period Given (Clause #13 BPA Code of Practice)

1) From their rejection of my initial appeal, it appears that APCOA are attempting to claim the charge is liable to them under airport byelaws. I reject this and put them strictly to proof on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay APCOA.

2) The amount of the charge is disproportionate to the loss incurred by APCOA Parking Ltd and is punitive, contravening the Consumer Rights Act 2015. 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 not ample, and the motorist had not 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.

3) If APCOA want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and APCOA have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that APCOA have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA. Furthermore, the notice to keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on 1st March 2016, and the notice to keeper was received 22 days later on 22nd March 2016.

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.

5) 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.

6) 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 do 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. APCOA are required to show evidence to the contrary.
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."

Furthermore, the pictures in the notice from APCOA show signs that say “Hotel drop off only” in the same area as the signs that APCOA say show a restricted zone, which is a clear conflict.

7) 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; this does not comply with the BPA code point 20.14.

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.
I contend that APCOA Parking Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.
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.

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 left 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 Meta 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 INSERT LINK HERE). 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 types 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).

10) As par 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 above points of unambiguous signage, 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’. 60 seconds in a layby I would argue does not breach a fair ‘grace period’, and therefore APCOA are in breach of the BPA Code of Practice.

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

Coupon-mad

Amount demanded is a penalty [STRIKE]not a genuine pre-estimate of loss[/STRIKE]

Get rid of the phrase above completely, throughout. 'Amount demanded is a penalty' is certainly OK but not stuff about GPEOL because POPLA will react by pressing the button to engage their 'Beavis case supersedes all' paragraph of drivel as soon as you mention 'no loss'.

Amalgamate #3 and #7 as they are both about the NTK, and get rid of #5 entirely, as it has no merit for POPLA, IMHO.

Where did you fit in Unicorn51's point, I couldn't spot it? If you haven't, maybe put it into point #1 where you talk about the bylaws.

Unicorn51

As your vehicle was parked in contravention of the terms and conditions of the car park we are satisfied that the notice was correctly issued in accordance with the BPA code of practice, and are therefore not able to waiver the charge on this occasion.


How does stopping on a highway become “parked in contravention of the terms and conditions of the car park”


You need to see the contract, I suspect the only contract they have is for the management of car parks. The link below is from an APCOA appeal at Luton Airport.


https://drive.google.com/file/d/0BynZj1JufqUzekdLQlB1NVhqTVE/view?pref=2&pli=1


Near the end of the appeal is a written authorisation of the landowner. The only authorisation they have at Luton Airport is the management of car parks not highways.

harj1185

Forgot to add this earlier if it helps:

https://drive.google.com/file/d/0B-RL7TPspSRdblFnWlhJUjQ5VTA/view?usp=sharing

harj1185

Latest version, have taken comments about amalgamating paragraphs, not sure about para 3 still though.

Thanks

https://drive.google.com/file/d/0B-RL7TPspSRdTFNqeG1yMmJnRzQ/view?usp=sharing

Coupon-mad

This might help with your point #3:

https://forums.moneysavingexpert.com/discussion/comment/70547371#Comment_70547371

HTH

harj1185

Coupon-mad wrote: »

This might help with your point #3:

https://forums.moneysavingexpert.com/discussion/comment/70547371#Comment_70547371

HTH

Thanks, I've had a read through but still not sure, in those cases it seems as though they are replying after the company has mentioned tresspass but nothing of the sort here.

Sorry if I'm being thick! Otherwise will submit the PDF on the POPLA website as above.

Thanks,

Harj