apcoa-broadway plaza birmingham

latttte-san

hello everyone

pleaseee help me, I have received a pcn, charge 70quid, half paid within first 14days. I really don't think i should pay, the car park was free for 3 hours for cinema, that the only reason I went to that cinema. but I didn't know there are no instruction around car park and cinema to show how to, at least I didn't see one at all .

here is what happened, i went to cinema 'odeon' at broadway plaza, only reason I choice to go there because they have 3hours free parking, never been to that car park before, as I have arrived there, I try to find any sign and instruction about how the car park works, but nothing other than it say 'ticket less car park' I couldn't spot any sign at all. then I went get my ticket at machine and got my popcorns and drink.

10/12/16 got postal of pcn came through the door, so I email the apcoa ask them to cancel the ticket, attached with my cinema receipt, they refuse to cancel the pcn.

reply :

Thank you for coming back to me. I have to inform you that there are very clear signs and parking customer validation-pod units on display as you walk into the foyer of the Odeon. These are positioned on both large pillars and I have attached photos of this unit and signs for your convenience.
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You have kindly explained that you bought a ticket from the Odeon cinema to watch a film but unless during any of your purchasing procedures, you were asked to enter your vehicle details, I am unsure as to how the car park or Odeon Cinema would have known you were parking that day?
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There are high numbers of signs located with the car park – at entry, exit , lifts, and within certain retail units, telling ALL customers to make sure they validate their parking before exiting. If you decided to ignore these signs throughout your entire visit, I am afraid this is a user error and not a technical error or failure in the equipment.
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In conclusion, your PCN will not be cancelled and I would advise you to seek assistance from car park staff in any car park you visit in the future if you are not sure of the payment procedures when you enter.
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please help, do I have any chance to win this one, they attached couples of pictures of the signs, which is placed above some kind self service machine, i didn't noticed the sign at all when i was there, I didn't know I had to play hid and seek with these instructions.

i have go through newbie post, for the postal pcn, i use lot of ' I ', would that cause any different to the result?
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much appreciate for any advice please

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Coupon-mad

10/12/16 got postal of pcn came through the door, so I email the apcoa ask them to cancel the ticket, attached with my cinema receipt, they refuse to cancel the pcn.

That's normal. Surely they've given you a POPLA code then, in which case read the NEWBIES thread section on POPLA. Show us your draft POPLA appeal. Even if you lose that it won't matter. You won't be PAYING APCOA any money! You owe nothing at all.

This story I found made me chuckle:

http://www.birminghammail.co.uk/news/midlands-news/abandoned-mercedes-racks-up-14235-8115596

You need to relax and sort out a POPLA appeal, assuming you have a POPLA code. Look in post #3 of the NEWBIES thread.

latttte-san

much appreciate for any advice!!!!!!!!!!!, is there anything i should add on to my appeal???

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POPLA Verification Code: xxxxxxxxx
Vehicle Registration: xxxxxxxxxx
Parking Company: xxxxxxxxxxxxxx
PCN Ref: Bxxxxxxxxxxxxxxx
Car Park: xxxxxxxxxxxxxxxxx
Date of Notice: xxxxxxxxxxxx
Parking Charge Amount: £70

I am the registered keeper and I wish to appeal a recent parking charge from APCOA. I submit the points below to show that I am not liable for the parking charge:


1) No registered keeper liability
2) No landowner contract nor legal standing to form contracts or charge drivers
3) Misleading and unclear signage
4) Amount demanded is a penalty not a genuine pre estimate of loss





1. APCOA has no authority or lacks sufficient authority to issue charges in relation to alleged occurrences.


The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract or that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, 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 the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

2. APCOA signage or the signage they are intending to rely upon in this case is deficient in the sense that there are insufficient signs to be seen by motorists when entering the area and that in any event the signage is incapable of establishing the basis of a contract.

It possible for drivers to enter the car park without seeing the signs thus no contract can be formed between the driver and APCOA. The entrance sign is situated on the side of the road on a standard right hand UK car, this makes it difficult for the driver to see or read from inside the car regardless of which side of the road the car park is entered from. All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering.

Further, Broadway Plaza car park has made offer for ‘FREE’ 3 hours parking for cinema customers; however there is no instruction at all in the car park for this complimentary service. please find attached photo 1, clearly there are no instruction for cinema customer whom fully entittled for the free parking as advertised.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.






3. The charge APCOA are seeking to levy does not represent a genuine pre-estimate of their loss or that of their principal.

The charge of £70 is being sought for an alleged breach of the parking terms namely ‘use of private car park without making a valid payment’ consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.


The Office of Fair Trading has stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.

On the day in question there was neither damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

Further, Broadway Plaza’s website clearly states FREE PARKING for cinema customer, which as cinema customer, this parking event was suppose to be part of the complimentary service, therefore no loss was made to APCOA. (Please find attached receipt for the Odeon cinema)

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach. Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd that:

"the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre estimate of loss, recognising that in complex commercial situations an accurate pre estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed


I request that my appeal is allowed.

Yours faithfully,

Coupon-mad

Are you not past the POPLA code working limit - 30ish days from the rejection letter was all you had. Try it on the POPLA website now to test it - but if you had the code before my last reply to you, the code will not work any more.

If your code still works, when was it issued?

If it is still working, remove this entire point which you've dug out from an out-of-date appeal:

4) Amount demanded is a penalty not a genuine pre estimate of loss

Your other numbering doesn't match the appeal points listed below the 1 - 4.

And if the POPLA code is still working, URGENTLY grab the up to date POPLA appeal templates from the NEWBIES thread post #3 and list the relevant ones under your first point about 'no keeper liability' - which you can only use if your first appeal didn't tell them who was driving/who parked...I fear you did.

Never mind, it's only APCOA and no-one pays them.

latttte-san

thanks to coupon mad and this forum.

got reply from popla, my appeal has been successful!!

'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.'

Coupon-mad

Great stuff!