'Parking Charge Notice' from APCOA Birmingham Airport

Alledgator

Recently I received the Invoice from APCOA as a registered Keeper with pictures of my car for 'alleged Dropping off / picking up outside of a designated parking area' which was 'Breach of the terms and conditions of use of the Airport Road' with a price tag of £100 (£50 discount if payed in 14 days) so I spent hours looking up and down this site.
The horrible crime happened on 27.03., the 'P'CN was issued on 18.04. and received on 22.04. so with the help I could find here (NTK too late, signage unclear), I put up an Appeal which looked like this:

Keeper of the vehicle registered: XXXXXXX
(Address)
Date 29.04.2016

Dear Sirs
Re: PCN No. BIAxxxxxxx
I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.

I believe that the signs were not seen/are ambiguous and the terms unclear to drivers before they park.
Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site
businesses, to cancel such a charge.
So please supply that policy as I believe the driver may well be eligible for cancellation.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a
POPLA code, or cancel the charge.

Furthermore DVLA and British Parking Association (BPA) will be informed that a member of the BPA Approved Operator Scheme (AOS) has obtained the keepers details for something other than
pursuing parking charges, which is a breach of the KADOE contract and also breached the terms of the AOS Code of Practice by using DVLA data breached the requirements of the Protection of Freedoms Act in pursuing the registered keeper having failed to serve a Notice to Keeper in Time.

I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,
XXXXXXXX

Obviously they did not accept the appeal, but it looks like they upped their game, with what I would need some help, as English is not my first language (You probably did find that out already by now) and it is even more confusing for me with the terms I never used before.. They stated there are bye-laws in place on the Airport (no idea what that means to me) and they do not work with POFA. They changed their mind on the contravention also, now it's 'parking on a red route' etc..
To be honest, if they had an option to pay for it online, I would probably have done so, just to get them off my back, but I don't even have a checkbook and I am sure, I am not ringing them on their premium number, what age are they living in? I'd rather sponsor this website, than pay to those scumbags!

The response is here:

26 May 2016
Dear XXXXXX XXXXXXXX
RE: Parking Charge Notice Number: BIAxxxxxxx
POPLA Verification Number: XXXXXXXXX
Thank you for your letter of appeal received 29/04/2016 against the Parking Charge Notice issued by
us to you on 27/03/2016. Having carefully considered the evidence provided by you, we must advise
your appeal has been unsuccessful on this occasion.
Your vehicle was observed parked on a red route; red routes are in operation around the airport site
in order to maintain the safety of our passengers, visitors and staff. Drivers are prohibited to stop,
unload or park on the red routes, which are clearly marked around the airport roads via signage and
double red road markings. A vehicle monitoring and enforcement operation is in place, with an
enforcement charge of £100. Please note nobody is allowed to enter/exit the vehicle in any
circumstance on the airport roads or red route.
As per the images below your vehicle would have had to pass a no stopping at any time sign, there
are over 20 signs around the Birmingham International Airport advising drivers that this is a no
stopping area.

(Pics of one of the signs)

(Pics of the car at the crossing)

In response to your comment made in your letter, please note notices only need to be issued within
14 days if the notice issued mentions “under Protection of Freedoms Act”. According to British
Parking Association (BPA) guidelines, the maximum permitted time to notify the registered keeper is
no more than 28 days after receiving keeper data from DVLA which takes no more than 35 days.
Once we receive the registered keeper information we issue a notice to the customer, and no more
than six months after the unauthorized parking event. It is our understanding that as we have not
referred to this act in our documentation, we are able to work in accordance with the BPA code of
practise (June 2013) which states that we have up to 28 days to deliver a postal PCN from the date of
contravention.
If the registered keeper fails to provide us with the driver’s details then the registered keeper
therefore maintains liability for the issue of this notice as the Airport is covered by Bye-laws. Byelaws
are conditions set in a Magistrates Court. It is a criminal offence to provide inaccurate
information, or to withhold information where required.

As mentioned above, APCOA have not claimed to, and do not work issue or seek payment under
POFA as this land is covered by Bye-laws.
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.
Therefore you now have a number of options:
1. Pay the Parking Charge Notice at the discounted price of £50.00 within 14 days. Please note
that after this time the Parking Charge Notice will increase to £100.00.
You can pay by the following methods;
By Post Send a cheque or postal order crossed and made payable to APCOA
Parking (UK) Ltd to:
APCOA PARKING, PO BOX 222,
LOWTON WAY, HELLABY
SHEFFIELD
S98 1NX
By Phone 0345 301 1151
2. You have now reached the end of our internal appeals procedure, to make an appeal to
POPLA – The Independent Appeals Service, within 28 days of this letter by completing the
online appeal form at popla. co. uk quoting the verification reference number
XXXXXXXXX. Please be advised that if you opt for independent arbitration of your case, the
Parking Charge Notice will be considered at the full amount of
£100.00 If you require a hard copy of the POPLA form please contact our customer service
centre on 0345 301 1151 where one of our customer services agents will be happy to assist
you.
By law we are also required to inform you that Ombudsman Services (ombudsmanservices. org) provides an alternative dispute resolution service that would be competent to
deal with your appeal. However, we have not chosen to participate in their alternative
dispute resolution service. As such should you wish to appeal then you must do so to
POPLA, as explained above.’
3. If you choose to do nothing, we will seek to recover the monies owed to us via our debt
recovery procedures and may proceed with Court action against you.
Yours Faithfully
APCOA Appeals Department

No pics as it wouldn't let me up them yet..
Do I have a chance of winning this with all the recent changes and does complaining still work? As the posts and emails are from 2013.. No Ombudsman services.
Any help would be appreciated

Alle

Northlakes

This is not relevant land for POFA 2012 so as long as you haven't disclosed who was driving they can only chase the driver (and they don't know who that was unless the keeper accidently discloses).i.e. POFA rules on keeper liability, such as late NTK don't apply.

Only concentrate your mind on airport appeals (top thread on forum page)such as Luton and Birmingham. Look up the many successful appeals at these airports and base yours on those.

Post up your appeal for critique.

Umkomaas

APCOA will be unlikely to challenge a solid POPLA appeal. Here's a thread where they gave up when faced with a detailed appeal.

https://forums.moneysavingexpert.com/discussion/5439689

Copy and paste from this, but please read it thoroughly and check that anything you are copying relates to your case.

HTH

Redx

Alledgator wrote: »

No pics as it wouldn't let me up them yet..
Do I have a chance of winning this with all the recent changes and does complaining still work? As the posts and emails are from 2013.. No Ombudsman services.
Any help would be appreciated

Alle

as long as you have not disclosed the drivers details its easily won at popla (Ombudsman Services)

there are probably dozens of similar threads on here over the last 6 to 9 months including Birmingham Airport (plus Luton) so plenty to read and to plagiarise for your own appeal

your main task is to use the search box and find 2016 ones and use those to aid your own popla appeal, there are lots of successful ones you can read and use for your own popla appeal

the key now is research, following the same well trodden path as many others before you

forget about 2013 , find examples from late 2015 and more importantly , from 2016

complaining wont work, but POFA2012 and the BPA CoP will work, when used properly, plus any other legal arguments too, including signage

dazster

Write to APCOA thanking them for confirming that there is no keeper liability under PoFA 2012. Point out that (as they are perfectly well aware) their contention that keeper liability applies under the airport byelaws is utter nonsense i.e. they are lying.

State that since they cannot hold the keeper (you) liable, and you have no intention of identifying the driver to them, they have no reason to continue to hold and process your personal data and you require them to delete it from their systems immediately in compliance with the Data Protection Act (personal data must be held for no longer than is necessary).

Tell them that their aggressive and misleading demands for money are causing significant distress and that your letter constitutes a Section 10 request under the Data Protection Act.

Fruitcake

I would do as dazster has suggested, but would also appeal to PoPLA near the 28 day appeal deadline. The reason for this is that the landowner only has 6 months to pursue a byelaw case to court.
By appealing to PoPLA you are prolonging the process and by the time you get a decision, good or bad, you will be getting close to the six month deadline.

Once that deadline has passed you should be safe from court, although you will probably get debt collector letters.

Just make sure you don't reveal the driver's identity in any corrspondance.

Coupon-mad

As long as you submit a long and detailed POPLA appeal like the other recent APCOA Airport ones on the forum, APCOA will give up!

Alledgator

Thanks everyone for Your input, there was no mention of drivers details, as I used the appeal posted in #1 (in small print), so far I am on a right track, now my to-do list:

1. More research
2. Thank You letter to APCOA
3. Put up PoPLA appeal together and post it here for evaluation (POFA2012, BPA CoP, signage, etc.)
4. Send PoPLA appeal off before the 28days deadline
5. Not to bother complaining as it doesn't work
6. The byelaws are in place (6mnths window), but it doesn't make keeper liable for this invoice (if I got that right)

Wish me luck ;-)

Alledgator

I have already sent a 'Thank You letter to APCOA' with no response until today (thanks dazster), so here is my butchered appeal for You to check, if You kindly let me know what I need to change before I post it to them.

POPLA Ref 0XXXXXXX
APCOA Parking PCN no BIAXXXXXXX

A notice to keeper was issued on <date> 2016 and received by me (the registered keeper of vehicle registration <Reg.plate>) on <date> 2016 for an alleged contravention of ‘Dropping off/picking up outside of a designated parking area on <date>2016 at <time>’.
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) Not relevant Land under POFA 2012; No Registered Keeper liability
3) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
4) Amount demanded
5) Misleading and unclear signage
6) Reasonable cause for requesting keeper details from DVLA
7) No landowner contract nor legal standing to form contracts or charge drivers
8) Photo Evidence appears doctored
9) No Grace Period Given

1) As mentioned in the rejection letter of my initial APCOA appeal, they claim that they do not work, issue or seek payment under POFA as the Birmingham Airport is covered by airport bye-laws. I would like them to prove which bye-law they claim was infringed, and in any case, why this would result in an obligation to pay APCOA. Airport bye-laws 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 bye-laws (section 5) refer to areas where 'the road traffic enactments do not apply' and I therefore call on the operator to explain if they are seeking a contravention under these sections and if so whether the road is subject to road traffic enactments or not and proof thereof.

2) 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. In my capacity as registered keeper I am not legally liable for keeper liability 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.

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 <date> 2016, and the notice to keeper was received 26 days later on <date> 2016.

4) The amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterized 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 not time to read the signage, let alone consider it, the charge was applied instantly as the vehicle stopped. The signage cannot be read safely from a moving vehicle.
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 (from the photographic evidence provided) around 3-4 seconds and APCOA are demanding payment of £100 for what would have been a charge of £1. Also this non-car park event 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 ‘Beavis vs Parking Eye [2015]' 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.

5) 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 at the particular time of the alleged contravention, traffic flow wouldn't allow the driver to stop and read the signage, which would ultimately lead to the penalty charge, which makes this contradictory. This is what it might have happened in this case, when the driver has stopped to read the signage or there is a possibility what it looks like he stalled the engine on the speed hump. The driver had no power over what the pedestrian decided to do, while restarting his engine.

6) 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, so it does not comply with the BPA code point 20.14. Also APCOA requested the details from DVLA for the alleged parking contravention (APCOA rejection letter), which this clearly isn't. There was no intention to park and leave the car for any amount of time on this road.

7) 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 scrutinizes 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.

8) 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 http<link> 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 hard-coding photo data).

9) 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 busy 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’ therefore APCOA are in breach of the BPA Code of Practice.


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

hoohoo

Add:

APCOA have stated that byelaws apply. I have read the byelaws for Birmingham airport which are available here
https://www.birminghamairport.co.uk/media/1375/airport-byelaws.pdf

I confirm that there are no byelaws relating to the event.

When you get the evidence pack from APCOA, check the byelaws they actually quote appear on the linked document. They have a sneaky habit of quoting byelaws from different airports, which of course have no relevance.

Coupon-mad

I suspect APCOA will bail out when they see that appeal!