APCOA Ticket Received - Advice Sought Options

[Rusk]

First up, apologies for joining immediately with a problem - I'm sure this happens a great deal - and just to say I have had a really good read of the site, the FAQs etc. In fact, I think I've read too much, too many threads and lost track of what the most recent and useful advice is. So sorry to go over what is clearly old ground with this...

Yesterday I received the letter below. I am the registered keeper of the car, the photos do not show who was driving. I've removed details as I noticed other threads advising that
PPCs also use this site, so hopefully I've been careful and can get a bit of advice going forward.

I gather my best route is an appeal then a second appeal?

Do the dates make any difference? does the location (a railway station) have any bearing? All advice very gratefully received.

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[Jlc]

If the name is spelt incorrectly then check the V5C - it's likely to be incorrect on there too.

[Redivi]

Railway stations are not relevant land in accordance with the Protection of Freedoms Act

This means that APCOA cannot recover payment from the registered keeper if it doesn't know who was driving

[Rusk]

If the name is spelt incorrectly then check the V5C - it's likely to be incorrect on there too.

Bugger... you're right. I cannot believe I hadn't noticed that. I am a plum.

[Gary Bloke]

Apart from the fact that there is no keeper liability, you could also appeal to POPLA on the grounds that the £100 charge (and the discounted amount) is not a genuine pre-estimate of loss (GPEOL). There is a very good legal argument that the Beavis ruling by the Supreme Court in 2015 does not apply here - because this is paid-for parking at a train station, and there are no shops served by the car park, then there is no commercial justification for a damages claim (ie a parking ticket) in excess of a GPEOL. Also compare the charge to other similar charges at nearby local authority car parks - it will probably be significantly higher so can feasibly be described as extravagant and unconscionable.

This post has been edited by Gary Bloke: Fri, 9 Aug 2019 - 14:24

[Jlc]

I don't believe POPLA uphold GPEOL under any circumstances?

[Rusk]

Very grateful for the swift input. Could someone decode the acronyms for me..?

I'm a bit clueless in terms of what tack to take.

[ostell]

Liability cannot be transferred from the driver to the keeper under Schedule 4 of the Protection of Freedoms Act 2012 as it is not relevant land for the purpose of keeper liability

Even if it was relevant land then they have failed to deliver the notice within the relevant period of 14 days as required by POFA 9 (4)
There is no warning of keeper liability as prescribed by POFA 9(2)(f)
There is no period of parking as required by POFA 9(2)(a)

Basically they have no chance.

GPEOL = Genuine Pre Estimate Of Loss. Thrown out by Beavis case

This post has been edited by ostell: Fri, 9 Aug 2019 - 17:04

[Rusk]

Ah, ok, so this is sounding good.

Is there a template / course of action / series of steps I should follow?

[ostell]

If you search the forum you will find a suitable response, several under mi ID.

Post for critique before you send

[Rusk]

mi ID.

?

[ostell]

My ID

[Gary Bloke]

Thrown out by the Supreme Court in the specific case of an overstay of a free parking period in a car park serving a shopping centre.

[Umkomaas]

Thrown out by the Supreme Court in the specific case of an overstay of a free parking period in a car park serving a shopping centre.

POPLA (Ombudsman Service) have never found for any motorist on the basis of GPEOL. In fact they have the most awful template drivel that is regurgitated whenever GPEOL is argued. Once 'locked on' to GPEOL, they can sometimes overlook much more salient appeal points.

In this case the appellant says the parking charge amount is not a genuine pre-estimate of loss. They say that the signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself, which is hidden in small print.

The legality of parking charges has been the subject of a high profile court case, Parking Eye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets.

The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient.

When doing so, I must consider the minimum standards set out in Section 18 of the BPA Code of Practice. Section 18.1 of the British Parking Association Code of Practice states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 continues: “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…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. In addition to this, I note that within the Protection of Freedoms Act 2012 it discusses the clarity that needs to be provided to make a motorist aware of the charge. Specifically, it requires that the driver is given “adequate notice” of the charge.

The act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or b) where no such requirements apply, the display of one or more notices which: i. specify the sum as the charge for unauthorised parking; and ii. are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

Even in circumstances where PoFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist and that the signage at the site is “conspicuous”, “legible and written in intelligible language, so that they are easy to see, read and understand.”

On this basis, I am satisfied that the parking charge is acceptable after applying the rationale adopted by the Supreme Court in the Parking Eye-v-Beavis case. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court.

[Rusk]

mi ID.

?

Thank you.

[Rusk]

If you search the forum you will find a suitable response, several under mi ID.

Post for critique before you send

I've searched, but I'm not seeing any templates that seem like a good starting point for my letter - or at least, I'm confused about the next steps that my letter needs to take (two appeals?).

It might well be my lack of technical skill, or just general incompetence, but if you had a template in mind that is somewhere in your ID, I would be very grateful for a link or a pointer.

This post has been edited by Rusk: Sat, 10 Aug 2019 - 10:48

[ostell]

You've got the basis of an appeal in post #8

[Rusk]

You've got the basis of an appeal in post #8

Ok,

This is my first draft for a reply...

""
Dear APCOA

In regard to your letter dated 15th August, concerning the alleged contravention on the 11th July.

It is my understanding that liability in this alleged contravention cannot be transferred from the driver to the keeper under Schedule 4 of the Protection of Freedoms Act 2012 as the location concerned is not relevant land for the purpose of keeper liability. And further, that I am under no obligation to assist you in determining the identity of the driver.

I also note the following:

• You have failed to deliver the notice within the relevant period of 14 days as would be required by the Protection of Freedoms Act 2012.
• There is no warning of keeper liability as prescribed by the Protection of Freedoms Act 2012.
• There is no period of parking as required by the Protection of Freedoms Act 2012.

Please take this reply as a formal dispute and appeal against this parking change notice in the first instance (information required is as below. Please also note that I will progress this appeal to the Independent appeals panel if necessary.

*Inset details here*

""

Advice, alterations, etc. welcome.

[ostell]

Ok,

This is my first draft for a reply...

""
Dear APCOA

In regard to your letter dated 15th August, concerning the alleged contravention on the 11th July, PCN xxxxxxxx vehicle VRM xxxxxx

It is my understanding that liability in this alleged contravention cannot be transferred from the driver to the keeper under Schedule 4 of the Protection of Freedoms Act 2012 (POFA) as the location concerned is not relevant land for the purpose of keeper liability. POFA 3(1)©

There is no legal obligation to identify the driver and I will not be doing so.

Even if it were relevant land I also note the following POFA fails:
[*]9(4) failing to deliver the notice within the relevant period of 14 days
[*]9(2)(f)no warning of keeper liability
[*]9(2)(a)no period of parking
[/list]

""

Advice, alterations, etc. welcome.

[Rusk]

Excellent, thank you... I've sent it electronically via their portal.

One issue (entirely of my own making) is that I have just noticed a typo (15th August instead of 5th August) and I can't edit, resubmit or even email them to tell them I made an error in my appeal.

I do like to make things harder for myself it seems...