APCOA, Birmingham Airport, Notice to Hirer

Redx

defintely put it up when you get chance, as it will definitely help others who come here lost and forlorn and not knowing the score

well done

typical pre-popla bluster from apcoa until push comes to shove , they always blink first when faced with the expense of a popla appeal

Edna_Basher

Well done MadHatter. You can now get back on to Lex to get your £12 refunded.

MadHatter752

Forgot about that! Thanks Edna Basher. getting OH to ring up today and see where he gets!!

MadHatter752

Here is my appeal to POPLA in it's entirety

APCOA PCN reference No.
POPLA reference No.

I am the hirer of the vehicle with registration number XXXXXXX . I received a NOTICE TO KEEPER for a Parking Charge Notice (PCN) demanding a charge for £100 from APCOA dated 10/01/17, due they state, “for the alleged contravention of Dropping off/ picking up outside of a designated parking area at Birmingham Airport car park on xxxxx at xxxx. I confirm I was not the driver at the time of the alleged contravention.

I sent an original appeal via email on XXXX My original appeal was rejected by email dated 08/02/17 with an attached letter. APCOA did originally email me 30/01/17 but they failed to attach the response letter. 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.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

"I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal."

In addition, 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.

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, 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 nowhere 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 that the alleged contravention 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 on this route, 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 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

Nice example of an APCOA Airport POPLA appeal, good stuff!

MadHatter752

With much of your help CM - thank you ��

Madman1

Hi Madhatter, when you submitted your appeal to POPLA did you have to fit it in to boxes of no more than 2000 words? If so how did you appeal with your posted appeal? I have drafted a long appeal but struggling to fit it in to the POPLA appeal sections?

Your input would be appreciated...

Did you post your appeal?

DollyDee_2

You have to submit your appeal as a PDF attachment under "OTHER".

Put your POPLA appeal number in the subject field and refer to your attachment.

Coupon-mad

Madman1 wrote: »

Hi Madhatter, when you submitted your appeal to POPLA did you have to fit it in to boxes of no more than 2000 words? If so how did you appeal with your posted appeal? I have drafted a long appeal but struggling to fit it in to the POPLA appeal sections?

Your input would be appreciated...

Did you post your appeal?

No-one here does either of those things. Why do you think the templates in the NEWBIES thread post #3 are so long, with links & photos? Because that's how to win at POPLA, a long and detailed, illustrated one-document PDF appeal uploaded under 'OTHER'. Very easy.

Madman1

I looked under other and was also 2000 words.

Will click other and attach document saying in the 2000 words to see below attachment.:D