I'm back...this time with a rail station penalty notice.

KeithP

k555lynn said:

Is there anywhere to find out if the car park is a railway car park?  I found a thread on here where they list the ones in my area that are and this one wasnt on the list

Where exactly was the vehicle parked? Which railway station?
Is there more than one car park at that station? If so, which one was your vehicle in?

k555lynn

There is only one car park at xxx station and thats where I parked.

Coupon-mad

It will be the station car park because they can only issue a 'penalty' (as opposed to a parking charge) re land that's under statutory control.  It DOES time out after 6 months.

Just ignore them and their worthless debt crawlers' daft £170 demands now.

k555lynn

Hi Coupon Mad.

Had a letter from APCOA dated Aug 23rd declining my appeal and saying now I have to pay or appeal to POPLA.

I have my POPLA appeal all ready and will submit via their site as a PDF attachment and choosing other as my reason per the guidance on here.

I have not yet received a NTK - at least  dont think I have? Only the parking notice on my car and then two declines of my appeal.

Ticket was July 4.

So do I remove the bit about NTK not being valid with the reasons why and just simply say a NTK was never sent?  Or are these letter they have sent with the photos of the car and the reason why my appeals are declined actually NTKs?

Coupon-mad

No you have had no Notice to Keeper.

Hmmm how about writing a replacement point? But obviously waiting until day 32 from rejection letter!  Do not do it early!  Do not rush if you were... day 32 is not yet.

it will make POPLA scratch their heads because this is presumably a penalty notice trying to claim 'owner liability' under Byelaws.

In order for you to write the point about no NTK, read the BPA Annex in their CoP about Railway Byelaws and see if it says anything about havibg to serve a Notice to Keeper or even a Notice to Owner. 

k555lynn

Ah thanks for pointing that out! The Popla count down starts from date of letter which is Aug 23rd.

I will wait it out then submit it with a replacement point thanks

k555lynn

Is this OK for POPLA appeal?  What does the NTK look like? I dont think I have had it i only had windscreen ticket and two appeal refusal letters?

PCN number: xxxxx

As the registered keeper of xxxx, I received a window screen Penalty Notice from APCOA Parking Limited’s on xxxx, 2023. I declined the invitation to pay their charge or name the driver, neither of which are required of me as the keeper of the vehicle. 

I appealed, and this appeal was refused but they extended the hold period for 14 days for me to submit an appeal or provide details of the driver. I appealed again as the keeper and was refused in a letter dated xxxx saying I had come to the end of their internal reviews procedures and that I should now contact POPLA.

I continue to deny all liability to APCOA Parking Limited (“APCOA”) on the following basis:

1.)  No Notice to Keeper, no 'keeper liability' under PoFA

APOCA had 56 days from the day after the parking event on xxx 2023 to issue a compliant Notice to Keeper following a windscreen ticket. To date I have not been issued a Notice to Keeper (NTK) by APCOA. As a Penalty Notice was provided on the vehicle windscreen, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

The alleged infringement occurred on xxx, 2023 and from my understanding the NTK was required to reach me by xxx, 2023. As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore, there can be no keeper liability.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times that a parking charge with no NTK cannot be enforced against the registered keeper.

2.) There is no liability to me as keeper - railway land is not ‘Relevant Land’

APCOA have failed to identify the driver of my vehicle. They are now seeking to impose liability on me as keeper. As far as I am aware, the Protection of Freedoms Act (2012) (“PoFA”) is the only legal means by which APCOA could seek to do this, but they specifically avoided reference to this Act in their correspondence. If they are not seeking to use PoFA to impose liability on me as keeper, they should state and prove the legal basis they claim makes me liable. If they cannot, then my appeal must be allowed immediately and the POPLA adjudicator can be spared consideration of the rest of this appeal letter.

Should APCOA now seek to make use of PoFA (despite avoiding doing so in their correspondence with me), I deny any possible use of PoFA to impose liability on me as keeper on the following grounds:

· Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of PoFA. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.


3.) The charge is not a genuine pre-estimate of loss

APCOA’s letter of response to my appeal, and their signage, both confirm that this charge represents liquidated damages for breach and the predominant purpose of the charge at this extravagantly high level is as a deterrent.

A parking charge must be an estimate of likely losses flowing from an alleged breach in order to be potentially enforceable. APCOA cannot demonstrate any initial loss caused by the parking event. They would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all.

Nor is the charge 'commercially justified'. If APCOA cites 'Parking Eye v Beavis & Wardley', it is irrelevant. Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats, holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014: ''In each case that I have seen from the higher courts...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach...It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

I fully expect APCOA will send POPLA a generic statement showing duplicated layers of staff time, including unnecessary checks and balances. It will no doubt follow the now rather well-trodden path of trotting out the unsubstantiated and incredible assertion that a full three hours of Management time 'double checking' the work of others goes into each and every PCN (whether appealed or not!). Where a large percentage of the 'GPEOL calculation' comprises staff costs, they must be able to justify those heads as relating to every typical PCN. And yet only 2% of PCNs get to POPLA stage, so clearly even if a Manager did double check those rare cases which go to POPLA, only 2% of those man hours could be included in a genuine pre-estimate of loss when calculated in advance. If the driver had paid this PCN between day 15 and day 29 and had never appealed it, APCOA would need to be able to justify the full charge as a GPEOL and their calculation could not include the entire count of man hours allegedly spent on the odd rare case appealed to POPLA.

Like other operators, it is in the public domain that APCOA have recently jumped on the bandwagon and manufactured a newly re-written ‘loss’ statement. This is surprisingly similar to that used by PPS (after PPS had won a couple of anomalous POPLA decisions). This allegedly plagiarised calculation is now common to several operators and POPLA has seen it and dismissed it before. A generic 'model loss statement' cannot possibly show any regard to calculating, before the event, a genuine pre-estimate of the likely loss which might typically flow from a parking event. I contend APCOA's calculation is merely a conveniently-totalled sum of actual loss suffered, made afterwards, rather than a genuine pre-estimate of loss.

As such, POPLA should I hope, see through it just as Ricky Powell did in 6861754004 (re PPS, the originators of the generic calculation APCOA now use):

''I am not satisfied that the pre-estimate of loss supplied by the Operator reflects the charge issued. I find that the ‘appeal writing’ loss asserted is duplicated in two heads of loss. The ‘Appeals staff’ appeals writing costs are included in the sum for £9.51. However, there are further appeal writing costs included in the ‘Management’ costs, which total £71.65. It has not been explained how the individual heads of loss included under the heading ‘Management’ are calculated. It is also impossible to determine what contribution the appeal writing costs contribute to the total of£71.65. Therefore, I cannot find that the total costs for ‘Management’ are substantiated and so must disregard them from the total genuine pre-estimate of loss. The total pre-estimate after subtracting the above £71.65 is £31.18. I find that this does not substantially amount to the issued £100 charge and that it does not constitute a genuine pre-estimate of the Operator’s loss caused by the Appellant’s breach. Therefore, I find that the parking charge is not enforceable in this case.'' (Ricky Powell, Assessor, August 2014).

I contend that APCOA's calculation (even if it is a more credible effort than those recently presented) must fail as it has been re-written recently and is not a genuine PRE-estimate. In fact it would be a 'post-estimate' after the event, of figures designed to match the charge. As such, any re-write by APCOA would be disingenuous and not acceptable, according to the words of Mr Greenslade: “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

I put APCOA to strict proof of the date when the GPEOL was decided for this contravention in this car park. This must include documentary evidence of a meeting with their client or contemporaneous notes or emails or other evidence which shows how/when this PCN sum was decided in advance, specifically for this client in this car park and showing the likely losses caused by this alleged contravention.

4.) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between APCOA and the driver

APCOA signs in this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. Any alleged contract (denied in this case) could only be formed upon entering the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) APCOA has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

Further, the single sign which appears at one end of the carpark breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''. I put APCOA to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. The sign is not prominent, not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

5.) Lack of standing / authority from landowner

APCOA has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put APCOA to strict proof of the contract terms with the actual landowner (not another agent as they are not the landholder).APCOA has no legal status to enforce this charge because there is neither assignment of rights to pursue PCNs in the courts in its own name nor standing to form contracts with drivers itself. They do not own this car park and appear(at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that APCOA are entitled to pursue these charges in their own right.

I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the BPA Code of Practice and does not allow APCOA (specifically) to issue proceedings for this sum for this alleged contravention in this car park. APCOA have previously failed in several attempted small claims in 2014 when it was exposed that only their principal had the right to start court proceedings. I say this is likely to be typical of APCOA contracts. In my case with this car park site, if APCOA cannot show the landowner has authorised them to pursue PCNs in the court in their own name alone, they will fail to show they have standing and authority. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. A redacted contract will not refute my assertion either because the redaction could be the relevant wording about who can start court proceedings.

In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

k555lynn

part 2 

6.) Unreasonable/Unfair Terms

Although there is no contract between APCOA and the driver (or myself), if there were then I would ask POPLA to consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999 (and the associated Office of Fair Trading guidance). There is a clear list of terms that apply. I have highlighted the following specifically as I believe they apply directly to this case:

· 2.(1)(e) Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

· 5.(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

· 5.(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts. A company such as APCOA needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

Finally, the charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977(UCT Act) which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on scarce and barely readable signage in an attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCR 1999 and/or UCT Act.

I therefore respectfully request that my appeal is upheld and for POPLA to inform APCOA that the charge is dismissed.

Yours faithfully

Fruitcake

Get rid of 3. Genuine no pre-estimate of loss went out with the Beavis case in 2015.

The UTCCR was superceded by the CRA 2015.

Wherever you found that example you are using, it is seriously out of date.

B789

As the registered keeper of xxxx, I received a window screen Penalty Notice from APCOA Parking Limited’s on xxxx, 2023.

You responded to the NtD and so that suggests you were the driver. You should have waited for the NtK before responding. Your wording in your POPLA appeal almost shouts that you were the driver.

You need to think about how to word it as the RK discovering the NtD because you weren't the driver. Tough one but, whatever the outcome, it has no bearing on any court claim should it come to that.