APCOA Birmingham Airport

bobo0742

I have typed below exactly what appears the correspondence that has been received from APCOA as it would appear as well as being totally confused myself, that I am confusing you helpful people.

The incident was at Birmingham Airport on 20/10/16. There was NO ticket placed on the windscreen. The vehicle concerned is registered to my wife, she was not the driver, in fact she was in North Wales at the time.

The first we became aware of this was when the following letter dropped through our door on 25/11/16.

REMINDER LETTER
Addressed to my wife with a parking charge notice number, her vehicle registration and the date of issue being 23/11/2016.

Dear Mrs ********** ***********

In regards to Parking Charge Notice B*********** which was issued to you on 20/10/2016 for the contravention of Failing to park / stop in a designated area

and then there are four black and white rear view pictures of the vehicle with time and date stamps in the corner

As we have not received payment or an appeal we would like to remind you that this parking charge notice is still outstanding.

As we do not know the name of the driver of their current serviceable address, we request that you either pay the amount in full as noted above: or if you were not the driver of the vehicle at the specified period, provide us with the name and address of their serviceable address and pass this notice onto them. If you have sold the vehicle please provide details of whom the vehicle was sold onto as well as proof of sale.

There is then a paragraph about hiring of vehicles

As you have missed the payment of the discount period we would like to remind you that the cost currently stands at the full rate of £100.00.

then a para about how they obtained the keepers details from DVLA and a further para about debt collectors and associated costs, followed by details on how to pay. The final para is about the appeals process giving 14 days from the "date given on this letter", and then a little bit about PoPLA

_______________________________________________________________________
My response via email was as follows

Hello,

The above parking notice dropped through our letterbox this morning.

1 This is a "reminder", but a reminder for what?...this is the first correspondence delivered to our address from your company in relation to this issue. The date of issue is apparently 20/10/16, giving the driver of the vehicle 14 days to pay the "reduced" rate of £50 for an alleged parking incident. This has already elapsed, so the driver has not got the opportunity to take advantage of this offer.

2 Who is ********** *******? They spelt my wife's name wrong, but so have DVLA

3 The car in the picture is one registered to my address, but I would need further evidence of who was driving at the time please, I am sure you will have the relevant photographs to assist in this matter.

4 It would appear from your evidence that the vehicle was stationary 12.12:16 seconds until 12.16:24 seconds, a total 4 minutes and 8 seconds. If you have evidence of it being stationary there for longer then please provide it.

As you have received a response within the 28 days of "notice date", please treat this as an appeal.

A response to yourself has been made immediately upon receipt of your correspondence, and so as to resolve this in a timely fashion, please respond in a similar manner.
_______________________________________________________________________

Then on 1/12/16 we received the below

PARKING CHARGE NOTICE

Addressed to my wife with the same notice number, vehicle registration and a date of issue of 07/11/2016.
Notice is hereby served to the registered keeper of vehicle registration ********
For the alleged contravention of BREACH OF THE TERMS AND CONDITIONS OF USE of the Airport Road infrastructure where signs area clearly displayed throughout the area showing these terms and conditions.

Please note the driver of the vehicle at the time of the breach of the terms and conditions detailed above is required to pay the parking charges in respect of the above and these have not yet been paid in full.

There are the same 4 black and white rear view pictures of the car

there are then the identical paragraphs as detailed on the reminder followed by payment methods, with a final a paragraph as follows

Should you wish to dispute the Parking Notice Charge, you can do so in writing to the address listed above or by email to Birminghamappeals@apcoa within 28 days of the date of this notice. it then continues with personal details that need to be included
_______________________________________________________________________
I sent an email confirming receipt of this late notice, and to both emails we received a confirmation of receipt from ACPOA.
_______________________________________________________________________
We then received a further letter from ACPOA dated 8/12/16 but addressed to me rather than my wife, and including a PoPLA Verification number....This reads

Thank you for your letter of appeal received on 08/12/2016 against a Parking Notice Charge issued to you on 20/10/2016. Having carefully considered the evidence provided by you, we must advise you your appeal has been unsuccessful on this occasion.

It then details about red routes being around the airport for safety, followed by the same four photographs of the car but in colour, followed by an extra picture of road sign, which is clearly taken inside of a building

They then state that they are satisfied the notice was issued correctly and give the following options
Pay the PCN within 14 days at the discounted price of £50.00 Please note that after this time the PCN will increase to £100.00...and then payment methods are detailed
Option 2 is the PoPLA route and option 3 is if we do nothing" we will seek recover the monies owed to us via our debt recovery procedures and may proceed with court action against you.
_______________________________________________________________________
...and nothing since then....

Redx

ok , so just draft your popla appeal based on all the info we have given you and look at thge 2 threads I mentioned by others who also had a pcn in the post and apcoa dropped it after they both submitted popla appeals

in your earlier draft you referred to issues that you dont have , so you did not proof read the appeal you copied and pasted nor did you take heed of what we told you

post your completed draft on here for critique , minus personal info

it should take you maybe an hour at most to adapt the button_moon appeal yo suit your case

Coupon-mad

Easy then - see them off within a week of filing a long POPLA appeal. We have so many examples on here that you can find a POPLA appeal in minutes, no links needed from us! There was one only yesterday where APCOA gave up within a week.

Absolutely simple to see this off.

bobo0742

Happy New Year to you all. I managed to locate the Button_Moon incident, and have hopefully got the right template and amended it appropriately. Please critique before I send it to PoPLA

Dear POPLA assessor,

Re: APCOA PCN, reference No. *** and POPLA reference No. ***

I am the day to day keeper of the vehicle with registration number ***. On *** I as keeper of this vehicle a REMINDER LETTER for a Parking Charge Notice (PCN), demanding a Charge of £100 from APCOA, due they state, to contravention of dropping off/picking up outside of a designated parking area at Birmingham airport on *** at ***. The letter from APCOA was dated <date>, some <number of days> days after the alleged contravention.

I sent an original appeal via email on *** to the operator APCOA. On ******** I received the PCN dated ********* . My original appeal was rejected by letter through the post on ***, included in the letter was a POPLA verification code.

I am not liable for the alleged Charge for the following reasons:

LOCAL BYELAWS MATTER ON NON-RELEVANT LAND

1) A non-compliant and erroneous PCN failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, and BPA Guidelines/code of Practice (of which APCOA is a member), and therefore there is no keeper liability.

2) The signage on the possible site is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.

3) Proprietary Interest.

4) Local Bylaws matter on relevant land as defined by schedule 4 POFA

5) The amount demanded doesn’t represent a genuine pre-estimate of loss and the case can be easily distinguished from Parking Eye v Beavis.

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 Practice, and therefore there is no keeper liability.

In order to pursue Keeper Liability under the POFA, APCOA must have met all the strict conditions in the Act. However, they have failed to fulfil 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 stationary 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.

(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 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”. Not only is this incorrect, but it is not even 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.

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.

2) The signage on the possible site 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 entrance 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 the entrance to the site, prior to entering the layby, when the driver is in a position to decide whether or not to enter the car park.

Upon arrival to the possible site, APCOA have failed to make it adequately clear that stopping in this area is subject to parking management. There are no signs at the entrance to this layby, as evidenced by photographs provided by APCOA, therefore the driver would have had no possibility of reading them without driving into the layby and putting the vehicle into stationary mode. There is no possibility of a driver reading any sign while focusing on the road, this layby is on 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 4 minutes and 8 seconds.Therfore 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.”

The signs are not lit or reflective (as per the BPA’s CoP). 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 signs difficult to notice and difficult to read. I contend that the location of the signs, the poor lighting, the size of the signs and the print size means it cannot be claimed that the signs are so prominent they ‘must’ have been seen and read by the driver.

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 there is no parking sign within or at the entrance to the layby cannot be claimed to establish terms of a contract with the driver, as such signs are not available for a driver to see upon entering the layby or becoming stationary within it. Furthermore, upon requesting evidence of signage from ACPOA at the location they returned a photograph of a sign located within a building, which clearly the driver would not have been able to read.

The signs do not state that by parking on the possible site 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 layby, let alone allege a contract with third party customers of the lawful owner/occupiers. The 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 authorised 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 NTK 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; 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.

5) The amount demanded doesn’t represent a genuine pre-estimate of loss and the case can be easily distinguished from ParkingEye v Beavis.

The amount demanded doesn’t represent a genuine pre-estimate of loss, nor is it a core price term nor does it reflect any material damage to Birmingham airport or APCOA. The fact that the charge is none-itemised and given as a round figure to the maximum amount allowed (also with the minimum amount of discount offered for payment within 14 days) under the AOS Code of Practice (Schedule 5) means that this charge can only be interpreted as quite literally no-more than a disguised penalty. Which has been issued in the form of a misleading un-solicited invoice with the aim of maximising revenue for APCOA.

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 minutes which is significantly less than 15 minutes and APCOA are demanding payment of £50 for what would have been a charge of £1. Therefore, there has been no significant loss to the business.

Therefore the parking charge is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The amount claimed is excessive and is being enforced as a penalty for allegedly stopping. I wish to see a breakdown of the cost calculations relating to this charge; given all of the costs must represent a loss resulting from the alleged breach at the time. Note: the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting an IAS defence. Also losses must not include normal overheads costs incurred by APCOA in the running the business or the manning of the airport premises.

Additionally, this case can easily be distinguished from the ParkingEye v Beavis case, as this is a non-car park case 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 'PE v Beavis' 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:

97 ''As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass...''

Lord Mance at 190: ''Mr Beavis... was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract.''

Furthermore APCOA have already previously lost appeals on this point ‘APCOA v Bycroft’ & ‘APCOA v Oughton’. Both cases were at Birmingham airport and both were for stopping momentarily in a sililar location i.e. both cases were identical to this one and yet again APCOA have failed to provide a genuine pre-estimate of loss. Therefore, on this point alone there can be no justification for rejection of this appeal.

This concludes my POPLA appeal.

Yours faithfully,

<Name>[/QUOTE]

Redx

much better , but despite My telling you a few times to head it up as
a LOCAL BYELAWS MATTER ON NON-RELEVANT LAND
near the start you have failed to do so , please press EDIT on the above and add it in near the beginning , plus add it to your draft notepad file as well in the same place- and add it to the part 4) too as that is about it being NON-RELEVANT LAND as well

then wait for further critique

but a much better idea and better start , which is why I said look at the BUTTON_MOON thread , which you finally did , so hopefully you are getting to grips with this forum and the processes

bobo0742

Thanks, I have amended the post as suggested, hopefully this is the final draft...and once again many thanks for your time

I will await your critique if I may before submitting to PoPLA

Coupon-mad

Point #4 in your first list of headings, has missed the vital word 'non':

4) Local Bylaws matter on non-relevant land as defined by schedule 4 POFA


I am not at all comfortable with point #5. I would remove all reference to 'loss':

5) The [STRIKE]amount demanded doesn’t represent a genuine pre-estimate of loss and the[/STRIKE] case can be easily distinguished from ParkingEye v Beavis.

[STRIKE]The amount demanded doesn’t represent a genuine pre-estimate of loss, nor is it a core price term nor does it reflect any material damage to Birmingham airport or APCOA. The fact that the charge is none-itemised and given as a round figure to the maximum amount allowed (also with the minimum amount of discount offered for payment within 14 days) under the AOS Code of Practice (Schedule 5) means that this charge can only be interpreted as quite literally no-more than a disguised penalty. Which has been issued in the form of a misleading un-solicited invoice with the aim of maximising revenue for APCOA.[/STRIKE]

[STRIKE]If[/STRIKE] The charge [STRIKE]is an attempt at gaining compensation for a loss to the businesses then it[/STRIKE] 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 minutes which is significantly less than 15 minutes and APCOA are demanding payment of £50 for what would have been a charge of £1. [STRIKE]Therefore, there has been no significant loss to the business.[/STRIKE]

[STRIKE]Therefore the parking charge is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The amount claimed is excessive and is being enforced as a penalty for allegedly stopping. I wish to see a breakdown of the cost calculations relating to this charge; given all of the costs must represent a loss resulting from the alleged breach at the time. Note: the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting an IAS defence. Also losses must not include normal overheads costs incurred by APCOA in the running the business or the manning of the airport premises.[/STRIKE]

Additionally, this case can easily be distinguished from the ParkingEye v Beavis case, as this is a non-car park case 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 [STRIKE]situation is nothing like the 'PE v Beavis' reasoning. It[/STRIKE] 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:

97 ''As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass...''

Lord Mance at 190: ''Mr Beavis... was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract.''

Furthermore APCOA have already previously lost appeals on this point ‘APCOA v Bycroft’ & ‘APCOA v Oughton’. Both cases were at Birmingham airport and both were for stopping momentarily in a similar location i.e. both cases were identical to this one. [STRIKE]and yet again APCOA have failed to provide a genuine pre-estimate of loss. [/STRIKE]Therefore, on this point alone there can be no justification for rejection of this appeal.

Finally, I know I said no links were needed from us but when I just searched 'APCOA Airport Individual' (as I wanted to show you the extra appeal point about the appellant not being shown to be the individual potentially liable) this was the second result. This was re Luton Airport but was a humdinger, covering every base and nothing about 'no loss':

https://forums.moneysavingexpert.com/discussion/comment/71489034#Comment_71489034

Use that one to add in the points you haven't got yet, amending it to suit (e.g. that poster's final point mentions a specific '90 seconds' so change that. APCOA will be mullered, gobsmacked and unable to contest.

Redx

I agree with the above , a joint amalgamation and check the details are correct for your own case , timings , actual airport etc and it will be the best yet

good info from c-m above too so expect a speedy retreat by APCOA after popla submission as a pdf , uploaded to their site after ticking OTHER and putting SEE ATTACHED APPEAL in the popla appeal comments box

happy new year

bobo0742

Edited as advised if you have time for one last critique, and I assume I hold back the actual evidence to prove that my wife was not the driver at this stage...that will come later down the line if this stage unexpectedly fails?

Dear POPLA assessor,

Re: APCOA PCN, reference No. *** and POPLA reference No. ***

I am the day to day keeper of the vehicle with registration number ***. On *** I as keeper of this vehicle I received a REMINDER LETTER for a Parking Charge Notice (PCN), demanding a Charge of £100 from APCOA, due they state, to contravention of dropping off/picking up outside of a designated parking area at Birmingham airport on *** at ***. The letter from APCOA was dated <date>, some <number of days> days after the alleged contravention.

I sent an original appeal via email on *** to the operator APCOA. On ******** I received the PCN dated ********* . My original appeal was rejected by letter through the post on ***, included in the letter was a POPLA verification code.

I am not liable for the alleged Charge for the following reasons:
LOCAL BYELAWS MATTER ON NON-RELEVANT LAND

1) A non-compliant and erroneous PCN failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, and BPA Guidelines/code of Practice (of which APCOA is a member), and therefore there is no keeper liability.

2) The signage on the possible site is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.
3) Grace Period

4) Proprietary Interest.

5) Local Bylaws matter on non-relevant land as defined by schedule 4 POFA

6) The amount demanded can be easily distinguished from Parking Eye v Beavis.
7) Airport Act 1986
8) Unreliable Photo Evidence



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 Practice, and therefore there is no keeper liability.

In order to pursue Keeper Liability under the POFA, APCOA must have met all the strict conditions in the Act. However, they have failed to fulfil 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 stationary 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.

(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 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”. Not only is this incorrect, but it is not even 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.

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.

2) The signage on the possible site 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 entrance 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 the entrance to the site, prior to entering the layby, when the driver is in a position to decide whether or not to enter the car park.

Upon arrival to the possible site, APCOA have failed to make it adequately clear that stopping in this area is subject to parking management. There are no signs at the entrance to this layby, as evidenced by photographs provided by APCOA, therefore the driver would have had no possibility of reading them without driving into the layby and putting the vehicle into stationary mode. There is no possibility of a driver reading any sign while focusing on the road, this layby is on the direct route out of the airport and is a very busy road so stopping to read signs is not an option.


The signs are not lit or reflective (as per the BPA’s CoP). 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 signs difficult to notice and difficult to read. I contend that the location of the signs, the poor lighting, the size of the signs and the print size means it cannot be claimed that the signs are so prominent they ‘must’ have been seen and read by the driver.

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 there is no parking sign within or at the entrance to the layby cannot be claimed to establish terms of a contract with the driver, as such signs are not available for a driver to see upon entering the layby or becoming stationary within it. Furthermore, upon requesting evidence of signage from ACPOA at the location they returned a photograph of a sign located within a building, which clearly the driver would not have been able to read.

The signs do not state that by parking on the possible site 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) Grace Period
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 4 minutes and 8 seconds. Therefore this cannot be considered a parking event.

As per section 13.2 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.' 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'. 90 seconds, I would argue does not breach a fair 'grace period', and therefore APCOA are in breach of the BPA Code of Practice.

4) 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 layby, let alone allege a contract with third party customers of the lawful owner/occupiers. The 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 authorised 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.

5) 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 NTK 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; 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.

6) The amount demanded doesn’t represent a genuine pre-estimate of loss and the case can be easily distinguished from ParkingEye v Beavis.

The charge 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 minutes which is significantly less than 15 minutes and APCOA are demanding payment of £50 for what would have been a charge of £1.

Additionally, this case can easily be distinguished from the ParkingEye v Beavis case, as this is a non-car park case 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 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:

97 ''As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass...''

Lord Mance at 190: ''Mr Beavis... was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract.''

Furthermore APCOA have already previously lost appeals on this point ‘APCOA v Bycroft’ & ‘APCOA v Oughton’. Both cases were at Birmingham airport and both were for stopping momentarily in a similar location i.e. both cases were identical to this one. Therefore, on this point alone there can be no justification for rejection of this appeal.

7) Airport Act 1986
A) 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.

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

8) Unreliable Photo Evidence
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 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.

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).

This concludes my POPLA appeal.

Yours faithfully,

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The_Deep

A good one, but what a waste of everyone's time. Everyone knows that they will never take one of these claims to court, a loss would be catastrophic. .