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APCOA Birmingham Airport Dropping off in wrong place
Cooke1
Posts: 1 Newbie
The driver, fearing that his passenger would miss his flight out of Birmingham Airport due to the almost stationary traffic on the approach to the official drop off zone, took a left at a roundabout and then a u turn ending up at a junction before a boxed junction and in full view of a camera car. The driver had to stop at the junction due to his exit being blocked and the passenger took the opportunity to exit the vehicle. The driver was not aware of any red lines besides the road and the first sign that he could read was when he was stationary at the junction. 22 days after the drop off or to be more exact, passenger bail-out, a Parking Charge Notice from APCOA Parking dropped on my mat delivered by Royal Mail.
There had apparently been an alleged contravention of Dropping off/picking up outside a designated parking area. This was a breach of the terms and conditions of use of the airport road infrastructure where signs are clearly displayed throughout the area showing the terms and conditions. The driver, I was informed, was required to pay the parking charges in respect of the above (I assumed that to mean the breach of the terms and conditions) and I was reminded that these have not yet been paid in full. I was invited to pay the £100 pounds or if paid within 14 days £50, or provide the name of the driver.
As I am the registered keeper I trawled through the moneysavingexpert posts about parking and fines and realised as keeper I was not liable for this charge and that as APCOA had failed to abide by certain regulations I was not compelled to name the driver. I then compiled the following appeals. I did not use the forum to peruse my appeals before sending so there may be errors. My appeal was successful in the end.
APPEAL TO APCOA
Re PCN BIA xxxxxxxxxx
Dear APCOA Parking
As the registered keeper of xxxxxxxx I am in receipt of your 'parking charge notice' xxxxxxxxxxx date of issue xx/xx/xx for an alleged contravention on xx/xx/xx. All liability to your company is denied, so I wish to invoke your appeals process on the following points:
1) This invoice is not a genuine pre-estimate of loss
2) The signage does not comply with the BPA Code of Practice as established by ParkingEye v Beavis
3) There is no authority or permission to issue invoices to motorists
4) This is not relevant land where you can use POFA 2012, and keeper liability
5) BPA code of practice of allowing a grace period to decide whether a contract is accepted has not been followed.
6) The 'notice to keeper' is flawed and does not follow POFA 2012 in particular, para 9.
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. Since the former is not possible - I would kindly request that this PCN is therefore cancelled.
RESULT
APCOA rejected my appeal and did not answer any of my points and seemed to be cutting and pasting from their own past replies so their letter did not make much sense. They seemed to think that as they had not mentioned the Protection of Freedom Act then it did not apply to them. They also said that as the registered keeper of the vehicle I was liable for this ticket. They also said the car was parked in contravention of the terms and conditions of the car park. They did however provide me with a POPLA appeal number if I wanted to appeal their decision. I then formulated a POPLA appeal.
POPLA APPEAL
The POPLA appeal site tries to get you to fill in boxes and the appeal that I was using was in the form of a letter so I filled in all the boxes with the words 'see attached letter' and then inserted the letter as a file. The letter I sent is as follows:-
POPLA Verification Number xxxxxxxxxxx
APCOA Parking charge Notice xxxxxxxxxx
Date of the alleged contravention of Dropping off/picking up outside of a designated parking area xx/xx/xx at Birmingham Airport.
Date of the issue of the notice to keeper (NTK) Parking Charge Notice (PCN) xx xxxx 2016 and received by the registered keeper of vehicle Reg No xxxxxxx, on the xx/xx/xx delivered by Royal Mail, 22 days after the alleged contravention. I appealed to APCOA xx xxxx 2016 as the registered keeper. I subsequently received a rejection of my appeal dated xx xxxxxx 2016.
Dear POPLA Assessor
I am the registered keeper of vehicle Reg No xxxxxx
I am not liable for the alleged Charge for the following reasons:
1) A non-compliant and erroneous notice to keeper (NTK) PCN failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, and BPA Guidelines/code of practise (of which APCOA is a member), and therefore there is no keeper liability.
2) The signage leading to and actually at the junction is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.
3) Proprietary Interest.
4) Not relevant land as defined by schedule 4 POFA
5) The amount demanded does not represent a genuine pre-estimate of loss
6) The keeper or driver has no responsibilities for the actions of a passenger.
1) A non-compliant and erroneous PCN failing to meet the conditions of Schedule 4 of POFA 2012, and BPA (of which APCOA is a member) Code of Practise, and therefore there is no keeper liability.
In order to pursue Keeper Liability under the POFA, APCOA must have met the strict conditions in the Act. However, they have failed to fulfill the requirements of the PCN as per paragraph 7/2/a and paragraph 9 Schedule 4 of the Act, and BPA section 20.12 Codes of Practice.
The PCN is non-compliant under the POFA 2012 for the following reasons:
(a) The PCN does not state how long the vehicle was parked for. The period of parking cannot, and should not be assumed from the images, as the latter only show the time the image was taken which states the contravention took place at xxxx the photographs received from APCOA show the vehicle in what they refer to as a car park, but is in fact a road junction, at xxxx and xx seconds and at xxxx.xx and xxxx.xx and xxxx a total of xx seconds. There is no evidence of parking and the car is required by law to stop at the junction and not enter the cross hatched box until the exit is clear. See photographs for traffic blocking the junction exit.
(b) The PCN fails to set out any unpaid parking charges for the specified period of parking. POFA requires that a PCN describes any unpaid charges which the driver owed at the time of the issue of the postal PCN.
(c) A charge for breach of contract cannot be described as unpaid by the driver at the time the PCN is issued, because it only arises at the time the PCN is received. The punitive amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA. The Act requires any unpaid tariff that the driver owed before the PCN was issued to be stated, and that this is the only sum that can be pursued from a registered Keeper.
(d) It also fails to show the geographical address of the client/Landowner. This is a requirement for all consumer contracts, as well as being a breach of the POFA. The PCN names the relevant land on which the vehicle was allegedly parked as “Birmingham Airport”. This is not a valid and fully-formed address and fails to specifically identify the alleged location and/or the land of the supposed parking event and subsequent Charge.
(e) The requirements of Schedule 4 of the POFA as regards the wording in a compliant PCN to be prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out any of the mandatory wording means there is no keeper liability. This point alone invalidates their PCN for lacking clear and concise information relating to the alleged parking event, eliminating their right to claim unpaid parking charges from the keeper of a vehicle under Paragraph 4(2)(a) of Schedule 4 of POFA 2012. If APCOA want to make use of the keeper liability provisions in Schedule 4 of POFA 12 and have not issued and delivered a PCN to the driver in the car park (actually a road junction) where the event took place, Your Notice to Keeper must meet the strict requirements and timetable set out in the schedule (in particular paragraph 9) 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 the xxth xxxx 2016 and the notice to keeper was received 22 days later on the xxth xxxx 2016.
2) The signage leading to and actually at the junction is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.
The British Parking Associations’ Code Of Practice (BPA’s CoP) at Section 18 sets out the strict requirements for signage:
“Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, and read.
If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”
A contract between APCOA and the Driver could only be formed at that particular junction if it was a car park and not a busy junction. The signs are too small and the requirement by law to not enter the junction until the exit is clear means that stopping there is imperative.
Upon arrival to the possible site, APCOA have failed to make it adequately clear that stopping at this junction is subject to parking management. The signs relating to the junction are located forward of the car, as evidenced by photographs provided by APCOA, therefore the driver would have had no possibility of reading them without driving to the junction and putting the vehicle into stationary mode. There is no possibility of a driver reading the print on the sign(s) while focusing on the road. This junction is just off the direct route out of the airport and is a very busy road so stopping to read signs is not an option.
The PCN is issued as a parking event, which did not happen; BPA CoP also refer to a “grace period” which clearly was not considered by APCOA as the period the vehicle is shown in photos provided is only xx seconds, therefore this cannot be considered a parking event.
“13.2 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.”
Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of them and agreed. These factors combine to make the sign difficult to notice and difficult to read. I contend that the location of the sign, the size of the sign and the print size means it cannot be claimed that the sign was so prominent it ‘must’ have been seen and read by the driver. From the photographs provided the one sign is barely discernible on a post on the far side of the yellow box junction and close to the entrance of a busy roundabout.
I contend that the information set out above clearly shows that the signs APCOA are relying on were not sufficiently prominent or legible that the driver ‘must’ have seen, read, understood and agreed to their terms prior to pulling into the zone. Terms set out on a sign are not imported into a contract unless brought home so prominently that the party 'must' have known and agreed to them. Nothing about these signs, or the terms set out in them, was sufficiently prominent.
I contend that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance, and fairness and transparency of terms offered in good faith) were not satisfied in this case. I contend that any parking sign at that junction cannot be claimed to establish terms of a contract with the driver, as such signs are not available for a driver to see until they have already stopped at the junction.
The signs do not state that by following the Highway-Code and stopping at the junction forms a contract with APCOA therefore there can be no possibility of a contract since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with APCOA in this case.
No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued:
“The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling”.
3) Proprietary Interest
APCOA has not provided enough evidence of their interest in the land as they have no legal possession which would give APCOA any right to issue a “£100 fine” which is what this is as there are no parking charges at this junction, let alone allege a contract with third party customers of the lawful owner/occupiers. The registered keeper believes there is no contract with the landowner/occupier that entitles them to levy these charges and to pursue them in the courts in their own name as creditor. Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant. Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.
I therefore put APCOA to strict proof to provide POPLA and myself with an un-redacted, contemporaneous, signed and dated copy of the contract between APCOA and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorized the necessary rights to APCOA. To demonstrate standing and authority, must specifically state that APCOA has the right to make contracts with drivers in their own name, that they have full authority to pursue charges through to court in their own name, and that the Landowner allows APCOA to charge £100 for a contravention. A witness statement to the effect that a contract is in place, which could be signed by someone who may never have seen the actual contract, will not be sufficient because it will not show the terms and conditions relating to the Operator’s authority, nor any restrictions that are in place.
If APCOA wish to rely on any such contract, I require them to show, on a point-by-point basis, that the contract is in complete compliance with all the requirements set out in the BPA Code of Practice.
4) Not relevant land as defined by schedule 4 POFA
APCOA is registered as an Approved Operator Scheme (AOS) member with the British Parking Association (BPA). In the rejection of my appeal, APCOA have stated that the notice was correctly issued in accordance with the BPA Code Of Practice. This is not correct because paragraph 23 of the BPA Code of Practice states that an AOS member can ‘gain the right to recover unpaid charges from keepers only if particular conditions have been met’ as outlined in Schedule 4 of POFA 2012. However, the “Guidance on Section 56 and Schedule 4 of the Protection of freedoms Act 2012: Recovery of Unpaid Parking Charges” states that Schedule 4 of POFA 2012 does not apply on land where byelaws exist. And byelaws apply on Birmingham Airport especially on public roads; therefore APCOA cannot apply Schedule 4 of POFA 2012 so the failure of APCOA to meet the conditions to invoke Keeper Liability means there is no legal basis for the charge to be enforced against me as Keeper. 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 amount demanded does not represent a genuine pre-estimate of loss
The case can be easily distinguished from Parking Eye vs Beavis.
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 xx seconds which is significantly less than 10 minutes and APCOA are demanding payment of £100 for what would have been a charge of £1. Also this non-car park 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:
6) The driver/keeper of the vehicle cannot be held responsible for the actions of the passenger. The passenger observing the gridlock ahead (see photos) exited whilst the car was stationary at a junction If APCOA believes the passenger has breached any Terms and Conditions let them pursue the passenger.
I therefore request as the keeper of vehicle xxxxxx that POPLA uphold my appeal and cancel this PCN.
This concludes my POPLA appeal.
Yours faithfully,
Mr xxxxx xxxxxxx
RESULT AFTER POPLA APPEAL
A week later I received a reply from POPLA stating 'APCOA Parking have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge' The official explanation was NKL which I assume means 'no keeper liability'. I am very pleased with the result and wish to thank all the forum experts who put me on the right track. As I, rightly or wrongly, thought I had all the answers and did not require assistance my attached letter has not been checked by the forum and may contain some fundamental errors. If in doubt post your draft before you send it for fine tuning. The NKL is in a way disappointing as the majority of my appeal was not contested. From what I have gathered from the forums to-date is that it is better to high-light a number discrepancies with the parking firm's procedures if that is applicable. Thank you once again for all your help.
If anybody requires further information please ask.
There had apparently been an alleged contravention of Dropping off/picking up outside a designated parking area. This was a breach of the terms and conditions of use of the airport road infrastructure where signs are clearly displayed throughout the area showing the terms and conditions. The driver, I was informed, was required to pay the parking charges in respect of the above (I assumed that to mean the breach of the terms and conditions) and I was reminded that these have not yet been paid in full. I was invited to pay the £100 pounds or if paid within 14 days £50, or provide the name of the driver.
As I am the registered keeper I trawled through the moneysavingexpert posts about parking and fines and realised as keeper I was not liable for this charge and that as APCOA had failed to abide by certain regulations I was not compelled to name the driver. I then compiled the following appeals. I did not use the forum to peruse my appeals before sending so there may be errors. My appeal was successful in the end.
APPEAL TO APCOA
Re PCN BIA xxxxxxxxxx
Dear APCOA Parking
As the registered keeper of xxxxxxxx I am in receipt of your 'parking charge notice' xxxxxxxxxxx date of issue xx/xx/xx for an alleged contravention on xx/xx/xx. All liability to your company is denied, so I wish to invoke your appeals process on the following points:
1) This invoice is not a genuine pre-estimate of loss
2) The signage does not comply with the BPA Code of Practice as established by ParkingEye v Beavis
3) There is no authority or permission to issue invoices to motorists
4) This is not relevant land where you can use POFA 2012, and keeper liability
5) BPA code of practice of allowing a grace period to decide whether a contract is accepted has not been followed.
6) The 'notice to keeper' is flawed and does not follow POFA 2012 in particular, para 9.
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. Since the former is not possible - I would kindly request that this PCN is therefore cancelled.
RESULT
APCOA rejected my appeal and did not answer any of my points and seemed to be cutting and pasting from their own past replies so their letter did not make much sense. They seemed to think that as they had not mentioned the Protection of Freedom Act then it did not apply to them. They also said that as the registered keeper of the vehicle I was liable for this ticket. They also said the car was parked in contravention of the terms and conditions of the car park. They did however provide me with a POPLA appeal number if I wanted to appeal their decision. I then formulated a POPLA appeal.
POPLA APPEAL
The POPLA appeal site tries to get you to fill in boxes and the appeal that I was using was in the form of a letter so I filled in all the boxes with the words 'see attached letter' and then inserted the letter as a file. The letter I sent is as follows:-
POPLA Verification Number xxxxxxxxxxx
APCOA Parking charge Notice xxxxxxxxxx
Date of the alleged contravention of Dropping off/picking up outside of a designated parking area xx/xx/xx at Birmingham Airport.
Date of the issue of the notice to keeper (NTK) Parking Charge Notice (PCN) xx xxxx 2016 and received by the registered keeper of vehicle Reg No xxxxxxx, on the xx/xx/xx delivered by Royal Mail, 22 days after the alleged contravention. I appealed to APCOA xx xxxx 2016 as the registered keeper. I subsequently received a rejection of my appeal dated xx xxxxxx 2016.
Dear POPLA Assessor
I am the registered keeper of vehicle Reg No xxxxxx
I am not liable for the alleged Charge for the following reasons:
1) A non-compliant and erroneous notice to keeper (NTK) PCN failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, and BPA Guidelines/code of practise (of which APCOA is a member), and therefore there is no keeper liability.
2) The signage leading to and actually at the junction is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.
3) Proprietary Interest.
4) Not relevant land as defined by schedule 4 POFA
5) The amount demanded does not represent a genuine pre-estimate of loss
6) The keeper or driver has no responsibilities for the actions of a passenger.
1) A non-compliant and erroneous PCN failing to meet the conditions of Schedule 4 of POFA 2012, and BPA (of which APCOA is a member) Code of Practise, and therefore there is no keeper liability.
In order to pursue Keeper Liability under the POFA, APCOA must have met the strict conditions in the Act. However, they have failed to fulfill the requirements of the PCN as per paragraph 7/2/a and paragraph 9 Schedule 4 of the Act, and BPA section 20.12 Codes of Practice.
The PCN is non-compliant under the POFA 2012 for the following reasons:
(a) The PCN does not state how long the vehicle was parked for. The period of parking cannot, and should not be assumed from the images, as the latter only show the time the image was taken which states the contravention took place at xxxx the photographs received from APCOA show the vehicle in what they refer to as a car park, but is in fact a road junction, at xxxx and xx seconds and at xxxx.xx and xxxx.xx and xxxx a total of xx seconds. There is no evidence of parking and the car is required by law to stop at the junction and not enter the cross hatched box until the exit is clear. See photographs for traffic blocking the junction exit.
(b) The PCN fails to set out any unpaid parking charges for the specified period of parking. POFA requires that a PCN describes any unpaid charges which the driver owed at the time of the issue of the postal PCN.
(c) A charge for breach of contract cannot be described as unpaid by the driver at the time the PCN is issued, because it only arises at the time the PCN is received. The punitive amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA. The Act requires any unpaid tariff that the driver owed before the PCN was issued to be stated, and that this is the only sum that can be pursued from a registered Keeper.
(d) It also fails to show the geographical address of the client/Landowner. This is a requirement for all consumer contracts, as well as being a breach of the POFA. The PCN names the relevant land on which the vehicle was allegedly parked as “Birmingham Airport”. This is not a valid and fully-formed address and fails to specifically identify the alleged location and/or the land of the supposed parking event and subsequent Charge.
(e) The requirements of Schedule 4 of the POFA as regards the wording in a compliant PCN to be prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out any of the mandatory wording means there is no keeper liability. This point alone invalidates their PCN for lacking clear and concise information relating to the alleged parking event, eliminating their right to claim unpaid parking charges from the keeper of a vehicle under Paragraph 4(2)(a) of Schedule 4 of POFA 2012. If APCOA want to make use of the keeper liability provisions in Schedule 4 of POFA 12 and have not issued and delivered a PCN to the driver in the car park (actually a road junction) where the event took place, Your Notice to Keeper must meet the strict requirements and timetable set out in the schedule (in particular paragraph 9) 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 the xxth xxxx 2016 and the notice to keeper was received 22 days later on the xxth xxxx 2016.
2) The signage leading to and actually at the junction is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.
The British Parking Associations’ Code Of Practice (BPA’s CoP) at Section 18 sets out the strict requirements for signage:
“Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, and read.
If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”
A contract between APCOA and the Driver could only be formed at that particular junction if it was a car park and not a busy junction. The signs are too small and the requirement by law to not enter the junction until the exit is clear means that stopping there is imperative.
Upon arrival to the possible site, APCOA have failed to make it adequately clear that stopping at this junction is subject to parking management. The signs relating to the junction are located forward of the car, as evidenced by photographs provided by APCOA, therefore the driver would have had no possibility of reading them without driving to the junction and putting the vehicle into stationary mode. There is no possibility of a driver reading the print on the sign(s) while focusing on the road. This junction is just off the direct route out of the airport and is a very busy road so stopping to read signs is not an option.
The PCN is issued as a parking event, which did not happen; BPA CoP also refer to a “grace period” which clearly was not considered by APCOA as the period the vehicle is shown in photos provided is only xx seconds, therefore this cannot be considered a parking event.
“13.2 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.”
Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of them and agreed. These factors combine to make the sign difficult to notice and difficult to read. I contend that the location of the sign, the size of the sign and the print size means it cannot be claimed that the sign was so prominent it ‘must’ have been seen and read by the driver. From the photographs provided the one sign is barely discernible on a post on the far side of the yellow box junction and close to the entrance of a busy roundabout.
I contend that the information set out above clearly shows that the signs APCOA are relying on were not sufficiently prominent or legible that the driver ‘must’ have seen, read, understood and agreed to their terms prior to pulling into the zone. Terms set out on a sign are not imported into a contract unless brought home so prominently that the party 'must' have known and agreed to them. Nothing about these signs, or the terms set out in them, was sufficiently prominent.
I contend that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance, and fairness and transparency of terms offered in good faith) were not satisfied in this case. I contend that any parking sign at that junction cannot be claimed to establish terms of a contract with the driver, as such signs are not available for a driver to see until they have already stopped at the junction.
The signs do not state that by following the Highway-Code and stopping at the junction forms a contract with APCOA therefore there can be no possibility of a contract since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with APCOA in this case.
No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued:
“The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling”.
3) Proprietary Interest
APCOA has not provided enough evidence of their interest in the land as they have no legal possession which would give APCOA any right to issue a “£100 fine” which is what this is as there are no parking charges at this junction, let alone allege a contract with third party customers of the lawful owner/occupiers. The registered keeper believes there is no contract with the landowner/occupier that entitles them to levy these charges and to pursue them in the courts in their own name as creditor. Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant. Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.
I therefore put APCOA to strict proof to provide POPLA and myself with an un-redacted, contemporaneous, signed and dated copy of the contract between APCOA and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorized the necessary rights to APCOA. To demonstrate standing and authority, must specifically state that APCOA has the right to make contracts with drivers in their own name, that they have full authority to pursue charges through to court in their own name, and that the Landowner allows APCOA to charge £100 for a contravention. A witness statement to the effect that a contract is in place, which could be signed by someone who may never have seen the actual contract, will not be sufficient because it will not show the terms and conditions relating to the Operator’s authority, nor any restrictions that are in place.
If APCOA wish to rely on any such contract, I require them to show, on a point-by-point basis, that the contract is in complete compliance with all the requirements set out in the BPA Code of Practice.
4) Not relevant land as defined by schedule 4 POFA
APCOA is registered as an Approved Operator Scheme (AOS) member with the British Parking Association (BPA). In the rejection of my appeal, APCOA have stated that the notice was correctly issued in accordance with the BPA Code Of Practice. This is not correct because paragraph 23 of the BPA Code of Practice states that an AOS member can ‘gain the right to recover unpaid charges from keepers only if particular conditions have been met’ as outlined in Schedule 4 of POFA 2012. However, the “Guidance on Section 56 and Schedule 4 of the Protection of freedoms Act 2012: Recovery of Unpaid Parking Charges” states that Schedule 4 of POFA 2012 does not apply on land where byelaws exist. And byelaws apply on Birmingham Airport especially on public roads; therefore APCOA cannot apply Schedule 4 of POFA 2012 so the failure of APCOA to meet the conditions to invoke Keeper Liability means there is no legal basis for the charge to be enforced against me as Keeper. 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 amount demanded does not represent a genuine pre-estimate of loss
The case can be easily distinguished from Parking Eye vs Beavis.
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 xx seconds which is significantly less than 10 minutes and APCOA are demanding payment of £100 for what would have been a charge of £1. Also this non-car park 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:
6) The driver/keeper of the vehicle cannot be held responsible for the actions of the passenger. The passenger observing the gridlock ahead (see photos) exited whilst the car was stationary at a junction If APCOA believes the passenger has breached any Terms and Conditions let them pursue the passenger.
I therefore request as the keeper of vehicle xxxxxx that POPLA uphold my appeal and cancel this PCN.
This concludes my POPLA appeal.
Yours faithfully,
Mr xxxxx xxxxxxx
RESULT AFTER POPLA APPEAL
A week later I received a reply from POPLA stating 'APCOA Parking have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge' The official explanation was NKL which I assume means 'no keeper liability'. I am very pleased with the result and wish to thank all the forum experts who put me on the right track. As I, rightly or wrongly, thought I had all the answers and did not require assistance my attached letter has not been checked by the forum and may contain some fundamental errors. If in doubt post your draft before you send it for fine tuning. The NKL is in a way disappointing as the majority of my appeal was not contested. From what I have gathered from the forums to-date is that it is better to high-light a number discrepancies with the parking firm's procedures if that is applicable. Thank you once again for all your help.
If anybody requires further information please ask.
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Comments
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I don't think APCOA can be bothered to read any appeal longer than a couple of paragraphs...it never fails! Well done.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Did the same and they dropped charges. Its not a parking fine - they have no rights what so ever.
DONT EVER PAY APCOA FINES.0 -
True but you have to be more careful with other firms (some sue and they are potentially enforceable). Not saying they are not beatable but not all are as easy to blow over with a puff of smoke as APCOA are!John_berrey wrote: »Did the same and they dropped charges. Its not a parking fine - they have no rights what so ever.
DONT EVER PAY APCOA FINES.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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