Apcoa appeal at Luton rejected - help pls

Lellang · 8 September 2014 at 11:16AM

Hi,

I was sent a PCN by Apcoa for allegedly parking at Luton airport. It was sent outside the 14 day period and so I appealed to them on those grounds (as the registered keeper) and also added a number of other paragraphs from the appeal template on this forum.
They have reject the appeal saying:
"in response to your comment made in your letter, please note notices only need to be issued within 14 days if the notice issue mentions 'under Protection of Freedoms Act'. According to British Association (BPa) guidelines, the maximum permitted time to notify the registered keeper is no more than 28 days after receiving keeper data from DVLA which takes no more than 35 days. Once we receive the registered keeper information we issue a notice to the customer, and nor more than six months after the unauthorised parking event. It is our understanding that as we have not referred to this act in our documentation, we are able to work in accordance with the BPA code of practise (June 2013) which states that we have up to 28 days to deliver a postal PCN from the date of contravention."

The then state that:

"Please not as the registered keeper of this vehicle, you are liable for this ticket, unless details of the driver are provided".

I don't think either of these statements are true (having read some of the threads on this website) and wandered if someone can give me the reference to the relevant law/regulations that proves them wrong so I include these in a POPLA appeal. Any other ideas would be most appreciated.

Their letter was sent on the 26th August so if I can't find something decent to rebutt their claims and win at appeal then I suppose I should pay the early fine just to make life easier!

thanks all for your help.

Northlakes · 8 September 2014 at 12:55PM

POFA does not apply on 'not relevant' land so the reply to you is just rubbish.

The usual statements here. Do not name the driver. Always write in the third person.

Search for the Luton Airport threads including the winning appeals, I have seen so many!

Look through these threads, familiarise yourself with them and you have an easy win on GPEOL alone.

The experts here can help, but do the groundwork first please.

The_Slithy_Tove · 8 September 2014 at 1:38PM

Lellang wrote: »

The then state that:

"Please not as the registered keeper of this vehicle, you are liable for this ticket, unless details of the driver are provided".

Oh dear. Having said that POFA does not apply in this case, they seem to have then gone on to claim it does by (falsely) claiming that the keeper is liable. This warrants a complaint to the BPA Ltd, and also to the DVLA who have stated that companies falsely claiming POFA will be suspended from access to the database.

Redx · 8 September 2014 at 2:31PM

as above

if you have a popla code, use a recent airport popla appeal for popla (post #3 of the newbies thread)

at the same time complain to the DVLA and to the BPA about them claiming POFA 2012 applies as its not relevant land so the RK is not liable

give copies of all paperwork to the BPA and to the DVLA as proof of POFA non compliance

fight them on all fronts , but especially popla - dont miss the 28 day deadline for popla

use the vcs at JLA like this one mentioned in the POPLA links

VCS at ANY AIRPORT, new version with quote from POPLA re commercial justification

just amend the location and PPC etc

Lellang · 8 September 2014 at 3:32PM

Just a quick question before I begin drafting: I can't work out if mine is a straight forward popla or an ias as the options laid out by Apcoa in the letter say: 2. Make an appeal to POPLA within 28 days of this letter - The INdependent Appeals Service. So it seems to be POPLa but then refers to IAS - am I getting confused?

Redx · 8 September 2014 at 3:36PM

yes you are confused, not helped by the acronyms

for APCOA its POPLA using the POPLA IAS service (not the IPC IAS service)

use the vcs at JLA like this one mentioned in the POPLA links , if you have a popla code and having checked the expiry date using the parking cowboys code checker

VCS at ANY AIRPORT, new version with quote from POPLA re commercial justification

just amend the location and PPC etc , so apcoa and different airport , plus any other minor alterations required

Umkomaas · 8 September 2014 at 3:38PM

The 'Independent Appeals Service' is both a generic term and the name of the appeals service linked to the IPC.

APCOA is definitely not an IPC AOS but a BPA AOS and therefore POPLA is the IAS dealing with APCOA appeals!

Clear as mud I guess, but correct nonetheless. :rotfl:

Dublindel · 8 September 2014 at 5:37PM

Did you park in a car park or park roadside

Coupon-mad · 8 September 2014 at 5:48PM

Their letter was sent on the 26th August so if I can't find something decent to rebutt their claims and win at appeal then I suppose I should pay the early fine just to make life easier!

Did you REALLY just say that when you are on a forum where the top thread includes a winning (already written) slam-dunk winning POPLA appeal, specifically written for beating APCOA re an Airport?! It's not a fine and you are about to snatch defeat from the jaws of victory if you give up now! You have the POPLA appeal win within your grasp, for the sake of 2 or 3 clicks, to find the POPLA example linked in post #3 of the newbies thread. Use the APCOA one not the VCS one. Gawd this is easy.

And you absolutely must report that letter which says the keeper is liable (when the keeper is NOT) to the DVLA and BPA using the email addies in the Newbies thread post #6.

Redx · 8 September 2014 at 6:26PM

when I checked the apcoa appeal it was almost a year old which is why I recommended the recent vcs ANY AIRPORT appeal

maybe that apcoa one needs checking and possibly updating like the peel centre one ? just a thought

Coupon-mad · 8 September 2014 at 6:32PM

Thanks Redx - you are right so here's a rewrite for a keeper to send about an APCOA PCN re any Airport:
*******************************************************************************************************************

Dear POPLA,

A notice to keeper was issued to me for an alleged contravention within the Airport site, recorded on APCOA's ANPR system. As registered keeper, I am not liable for this PCN and so I wish to appeal on the grounds numbered 1 - 5 as outlined below:

1) The Charge is not a genuine pre-estimate of loss
APCOA’s charge represents liquidated damages for breach, so it must be a pre-estimate of reasonably likely losses flowing from an average breach in order to be potentially enforceable. APCOA cannot demonstrate any initial loss caused by the parking event so they cannot add on multiple costs that happen to match the inflated PCN sum. The fact is, they would have been in the same position had the parking charge notice not been issued, and would have the same business and staff/salary overheads even if no vehicles breached any terms at all. A 'GPEOL' calculation must be a sum which might reasonably flow directly as a result of a parking event. An Operator cannot reasonably include in a GPEOL calculation, 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

http://www.farrarsbuilding.co.uk/cms/uploads/A-Retailer-v-B-K_001.pdf

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely in the vast majority of cases.

Further, if APCOA claim there was a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put APCOA to strict proof that a GPEOL was ever discussed and decided for this contravention at this site. This must include documentary evidence of a meeting with their client or contemporaneous notes or emails or other evidence which shows how/when/why this PCN sum was decided in advance, specifically for this client in this car park. Showing that the GPEOL was discussed and set before the parking event is just as important as showing they have a contract in place before the parking event.

2) APCOA have failed to establish keeper liability
APCOA have failed to fulfil the requirements necessary under statute (the POFA 2012) to allow them to attempt recovery of any charge from the keeper.

Sites designated as Airports by the Secretary of State are subject to statutory control in the form of byelaws. POFA 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050. The driver has not been identified, therefore as registered keeper I cannot lawfully be held liable for this charge. If APCOA argue otherwise then they must produce the byelaws and maps to show that this part of the Airport is somehow exempt from statutory control. The onus falls upon APCOA to demonstrate this and I put them to strict proof on this point.

However, even if this Operator counters the above point, there is still no keeper liability because the notice to keeper (NTK) is not valid. It fails to meet the requirements of paragraph 9 of Schedule 4 of the POFA 2012. The liability is not based in the law of contract but is created by the statute and the wording is prescriptive and mandatory.

The NTK issued by APCOA appears not to comply with the Act as follows:
(A) Paragraph 2(a) requires APCOA to specify the 'period of parking',. A layman's interpretation means this requires a stated 'time period' during which the car was evidenced to be 'parked'. A 'period of parking' is not evidenced by a photo of a single moment in time when unmanned ANPR cameras captured the presence of a vehicle registration number on a road.
(B) Paragraphs 2(b), 2(c) and 2(d) require a NTK to “inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full” and to ''describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable'' and to ''specify the total amount of those parking charges that are unpaid, as at a time which is—(i)specified in the notice; and (ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper''. I see no 'time' specified which falls between the date/time of the ANPR photo and the issue date of the NTK. Further, nothing is specified about any charge which could be described as 'unpaid' by the driver, before the day the NTK was issued invoicing me for another sum (which, whilst conveniently also described as a 'parking charge' is not capable of being 'unpaid parking charges' prior to the invoice). If there were no 'unpaid' parking charges then the NTK must still specify those as zero, to comply with 2(d).
(C) Paragraph (2)(h) requires an operator to "identify" the creditor. A layman's interpretation means this requires words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made, which could be the operator but is likely to be the landowner or their client, in view of the court-exposed failings of APCOA's known contracts as detailed in point 4 below.

The fact that some or all of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. As the NTK is not explicit as regards mandatory wording in the Act, it is not valid.

3) Unclear and unreadable signs; lack of repeater signs for a 'no stopping zone'
If APCOA intend this road to treated by drivers as a clearway then the signs and lines must be compliant with the TRSGD2002 to avoid confusion. Any repeater signs in this area do not face the oncoming traffic, are obscured in places and the words are too small to read from a car. The circumstances which may give rise to a PCN cannot be read and understood without stopping. In breach of Appendix B of the BPA Code of Practice and despite the words of POPLA Lead Adjudicator, Mr Greenslade in the 'No Stopping Zones' section of the POPLA Report 2013, there is a lack of regular repeater signs and nothing about the risk/amount of a PCN can be read by a driver in moving traffic, particularly late in the day or in the early hours or even in adverse weather, because the signs lack prominence at this busy site. The number of recorded cases in the public domain with drivers having no idea that this road is apparently meant to be a clearway, shows that this site is a cash-cow for APCOA and they have had no reason or incentive to make the restriction clear.

4) Lack of standing/authority from landowner
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. 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. 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 their only attempted small claims in 2014 when it was exposed that only their principal (a Hospital) had the right to start court proceedings, and APCOA were merely a paid agent with no rights nor further authority.

5) ANPR photos show no 'parking' event and the camera system breaches both the ICO registration and the principle of transparency in the UTCCRs
As I am merely the registered keeper, I have no evidence to show me that my car was involved in any 'period of parking' at all. Photos of a vehicle clearly not in a car park but on a road, with the images zoomed in on a number-plate and taken by an unmanned ANPR camera, are not parking photographs. APCOA cannot show beyond the balance of probabilities that the car was not involved in non-parking related activity - e.g. queuing at a junction or adjusting a seatbelt or slowing briefly to read any signs to locate the car park or exit. All of which are acceptable features of driving carefully along an unfamiliar Airport roadway, with the distractions of pedestrians, other signs, bright lights and flags along parts of the road; even if a vehicle slowed or stopped momentarily then this is not parking. I put APCOA to strict proof of an actual period of parking, not proven merely by remote photos of a vehicle on a road.

In addition, the BPA CoP contains the following obligation in paragraph 21:
''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''
APCOA fail to operate the system in a 'reasonable, consistent and transparent manner'; I have seen no evidence of signs which inform a driver about ANPR technology in use here, nor what the system is used for. Even if there is a sign with a picture of a camera - and I have no idea due to the lack of information from this operator - this would simply suggest CCTV cameras are on site for safety or crime detection by the Local Authority or Police, which would not be an unreasonable assumption in an Airport. A sign with a camera picture would not be sufficient under the Operator's ICO registration, to meet their duty to inform a driver about the circumstances under which the ANPR images and DVLA data is actually being collected and stored and by whom and for what purpose.

Further, the UTCCRs 1999 (statutory regulations based upon mandatory EU Directives) create a duty upon parties offering contract terms to consumers that these must be fair and transparent and set out clearly in plain English. Terms on a sign - which by definition is a contract not negotiated in advance and where the consumer has had no opportunity to influence the terms or have any bargaining power - must ensure that the rights and obligations of both parties are made clear. A hidden ANPR camera or CCTV car trained on the road, with no clear signs informing drivers about the operation or identifying the private firm which is using the data and for what purpose, is clearly unfair and lacks transparency.
UTCCRs Group 18(a): unfair financial burdens, states:
''Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.''
9.2 ''...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
UTCCRs Test of fairness:
''A term is unfair if...it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of the consumer, contrary to the requirement of good faith. Unfair terms are not enforceable against the consumer.''

I therefore respectfully request that my appeal is upheld.

Yours faithfully,

{keeper's name}

Apcoa appeal at Luton rejected - help pls

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