APCOA Birmingham Airport

Fruitcake

One minor typo needs addressing paragraph 1)

"Code of Practise Practice."

Coupon-mad

6) 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.

Always remove anything about 'no loss'. Distinguish the case from Beavis, yes, but mention 'loss' = no.

If the keeper appellant has evidence that they were not driving I would actually throw that in as well. No reason why not. They should also state at the top:

I am the day to day keeper of the vehicle with registration number ***. I was not the driver on that occasion and I attach proof, in the form of .... (evidence I was elsewhere).

bobo0742

Appeal lodged...I will keep you updated, Many thanks for everyone's guidance in this matter

Redx

well done

please edit post #30 so it shows all the amendments asked for below it , so it becomes the latest popla appeal we can point other people at so they can use it to draft their future popla appeals in 2017 (each one gets better than the last)

ie:- you have learned from others like the button_moon thread and the one linked by CM above , let others learn from them plus yours too

thank you

bobo0742

Final draft as requested

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 was not the driver on that occasion. 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 ******pm. The letter from APCOA was dated ***********, some 34 days after the alleged contravention.

I sent an original appeal via email on *********, the date I received the above reminder 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 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'. *************, 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) This 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,

bobo0742

Hi Guys,

I guess no surprise, but the below email was received from PoPLA today. Thanks for your help, and I hope this assists others who these cowboys try to bully.

Dear *** ********

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference *************

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.

Yours sincerely

POPLA Team

Fruitcake

bobo0742 wrote: »

Hi Guys,

I guess no surprise, but the below email was received from PoPLA today. Thanks for your help, and I hope this assists others who these cowboys try to bully.

Dear *** ********

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference *************

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.

Yours sincerely

POPLA Team

Well done on your good news. None of the regulars here will be surprised that you have seen them off.

Redx

bobo0742 wrote: »

Hi Guys,

I guess no surprise, but the below email was received from PoPLA today. Thanks for your help, and I hope this assists others who these cowboys try to bully.

Dear *** ********

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference *************

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.

Yours sincerely

POPLA Team

ha , ha , ha , ha , haaaaaaaaaaaaaaaaaaaaaaaa

nope , no surpise there , lol

this thread can go down as a 2017 BHX (Birmingham , APCOA , POPLA draft which only needs minor tweaks regarding any details that apply in each case where they differ, but largely its almost a template appeal

same applies to Luton , APCOA , POPLA appeals , where the names are changed from Birmingham to Luton !!

well done , especially as you were wavering near the beginning

happy new year