APCOA, Birmingham Airport, Notice to Hirer

MadHatter752

Hi

I have mentioned this in my previous post but... my husband has just received a Notice to Hirer for his Company Leased car from APCOA Parking for an "alleged contravention of Dropping off/picking up outside of a designated parking area on 22/11/16. The date of issue of the notice was 10/01/16.

No windscreen PCN was issued.

I have just read the newbies thread and he is going to write a letter of appeal to APCOA but I just have a couple of questions.

In the newbies thread examples of appeal letters, POFA was mentioned. I have done a bit of reading for my own case and am I write to understand that POFA wouldn't be a relevant appeal?

There are four pictures on the Notice to Hirer two of which clearly show my husband getting out of the car, so he cannot be the driver. Is it worth mentioning this in his appeal?

On the newbies thread, it mentions dates and an appeal based on the PPC not issuing the required documents within 21 days of being notified of the hirer.... I am guessing the only way to find out what date it was issued is to phone the lease company and ask...

Has anyone had any experience with this with Lex? My husband has already received a letter stating a £12 admin fee has been charged. It doesn't say what it relates to but it has to be this!!

thanks for your help everyone, as always.

MadHatter752

Coupon-mad

On the newbies thread, it mentions dates and an appeal based on the PPC not issuing the required documents within 21 days of being notified of the hirer.... I am guessing the only way to find out what date it was issued is to phone the lease company and ask...

Nope, because it's not about when the lease firm notified the PPC who the hirer was. It's about the fact that APCOA then failed to enclose the required documents (AT ALL) with the NTH they posted to your OH. They never do, so he wins as hirer if he uses our wording.

In fact he needs to read the section near the end of post #1 of the NEWBIES thread and use the Hirer template appeal posted by Edna Basher. Not the usual template. Or click on Edna Basher's name and read the appeal advice he gave to another hirer only this week...

Redx

you should have posted this on your original thread if there is one , not started a new thread (pm crabman or soolin and ask them to merge the 2 threads)

the correct template should be used "as is" in the appeal by the HIRER/LESSEE to apcoa , no alterations

pofa2012 does not apply on airport land , byelaws apply

read the recent case on here for the same airport where a comprehensive apcoa BHX popla appeal was approved and they caved in almost straightaway (at popla , once they had their code) - so your popla appeal will be based on that recent one too

check the hire contract for these charges , which you can dispute and claim back because its neither a fine nor a penalty , so wont be mentioned in the contract (its a parking charge notice issued on a private road - on private land)

plenty of threads on here about hire companies and their charges , please read them

Edna_Basher

I suggest that your husband contacts Lex to advise them that he reasonably requires that they refund their £12 admin fee as soon as the APCOA Parking Charge is cancelled. You can't say fairer than that and I would very much hope that Lex will agree.

With regard to disputing the PCN with APCOA, there's no need for your husband to do anything fancy - just a standard letter about the non-compliant Notice to Hirer with an extra bit chucked in to remind APCOA that this location is not relevant land under POFA anyway.

MadHatter752

"you should have posted this on your original thread if there is one , not started a new thread (pm crabman or soolin and ask them to merge the 2 threads"

I can't get the "quote" marks to work but I mentioned this issue in passing on a previous thread which is about a PCN I have received and was told to start a new thread as the two are not connected.


So, does this cover it do you think?


Dear Sir,

Parking Charge Notice [0123456789]: Vehicle Registration [AA11ABC]

I refer to the above-detailed Parking Charge Notice (“PCN”) issued to me by APCOA Parking (UK) as a Notice to Hirer. I confirm that as the hirer of this vehicle, I am its keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) and I write to formally challenge the validity of this PCN.

You will no doubt be familiar with the strict requirements of Schedule 4 of POFA to be followed in order for a parking operator to be able to invoke keeper liability for a Parking Charge. There are a number of reasons why APCOA Parking (UK) Ltd's Notice to Hirer did not comply with POFA; in order that you may understand why, I suggest that you carefully study the details of Paragraphs 13 and 14 of Schedule 4 in particular.

You will also be aware that POFA does not apply to the land in question where the alleged contravention occurred as this land is covered by byelaws.

Given that APCOA Parking (UK) Ltd has forfeited its right to keeper liability, please confirm that you shall now cancel this charge. Alternatively, should you choose to reject my challenge, please provide me with details of the Independent Appeals Service (POPLA), their contact details and a unique POPLA appeal reference so that I may escalate the matter to POPLA.

Thank you for your cooperation and I look forward to receiving your response within the relevant timescales specified under the British Parking Association Ltd Code of Practice.


Yours faithfully,





I've used your template Edna Basher and just added a bit as you suggested about POFA not applying.


thanks!

Umkomaas

That looks fine. Send that off by the method APCOA indicate in their Notice to Hirer/Notice to Keeper and ensure your husband's name and address is on the appeal - don't give them any excuse to argue you didn't comply with their procedures, which can result in them ignoring it and your husband not getting a POPLA code.

APCOA are easy to see off at POPLA using a forum assisted appeal. See you back when you get the code.

MadHatter752

Thanks, I am assuming emailing them is fine?

Edit - i have emailed it to them, seems fine. Thanks for your help guys.... will be back on this thread when i get a response

MadHatter752

Hello
Apart from an automatic acceptance email, we haven't heard anything by email.

We have received in the post though a "Reminder Letter" from APCOA. I am guessing this is an automatic letter because they haven't picked up our reply yet... Would you just ignore this reminder?

Thanks
MadHatter752

twhitehousescat

dis regard letter and await a POPLa code

MadHatter752

Hi


So we had an email reply from APCOA which I have scanned onto Dropbox

https://www.dropbox.com/s/wg3qa721duqi3ou/Scan%20to%20Email17020817_24_52.pdf?dl=0

It was a more detailed response than I had anticipated.

I basing our appeal to POPLA on bobo0742's appeal, which was very successful, although the case wasn't exactly the same so would someone mind reading APCOA's response on my DropBox and then tell me if I am missing anything in the draft below please?

With bobo0742 there seemed to be some problem with the dates he could use but I think APCOA may have stuck to their timings for ours.... the dates are below if it helps.

Alledged breach - 22/11/16
Notice to Hirer dated 10/01/17
Our response to APCOA 21/01/17
APCOA Reminder letter dated 27/01/17
APCOA advise unsuccessful appeal and give POPLA code - 30/01/17 ( we didnt receive this until 08/02/17 as they didnt attach it to their initial email).

thank you all in advance.


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.

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 in this particular area, as evidenced by photographs provided by APCOA, therefore the driver would have had no possibility of reading them without putting the vehicle into stationary mode. There is no possibility of a driver reading any sign while focusing on the road, this road 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 this area and it 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 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 and was no where near the alleged contravention.

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 10 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.

Coupon-mad

Should be enough to see off APCOA but I would throw in the template from post #3 of the NEWBIES thread that talks about no driver liability because the appellant is the keeper and has not been shown to be the individual liable (driver).