Another APCOA fine thread

anothpark

Ok so here is my first draft appeal as modified from other threads.
A couple of points I would like to add is that I've been going over a lot of the letters and at one point in the NTK APCOA does make mention to

"Please be advised that if after 28 days from the 'date given' that if the charges haven't been paid in full and we do not know or have a current address for service for the driver at the specified period of parking, under schedule 4 of the Protection of Freedoms act 2012, we have the right under the requirements of the act, to recover the unpaid parking charges from the keeper of the vehicle. Collection activity may result in increased charges and APCOA Parking may engage third part Debt collectors or commence legal proceedings"

Does this mean I can't include the POFA stuff or does that relate to them obtaining the details in the first place to send the NTK?

Also their second letter includes a photo of the T&Cs sign which states "Parking is subject to the Terms and conditionsf and Railway Byelaws displayed adjacent to the payment machines in this car park"

Not sure what that means in terms to my reference of the byelaws

POPLA Ref xxxxx
APCOA Parking.PCN no xxxxxxx

A notice to keeper was issued to me (The Registered Keeper of vehicle reg XXXXXXX) for an alleged contravention of 04-Not parked in a designated parking area on xx-xx-xxxx.

My Appeal.

1). The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor . The operator is required to specifically "identify" the creditor not simply name them on it .This would require words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made. APCOA have failed to do this and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

2). The amount of the charge is disproportionate to the loss incurred by APCOA Parking Ltd and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because APCOA Parking Ltd have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).

3). I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give APCOA Parking Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, APCOA Parking Ltd's lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require APCOA Parking Ltd to demonstrate their legal ownership of the land to POPLA.

4). I contend that APCOA Parking Ltd are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

5). I believe there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to APCOA Parking Ltd to prove otherwise so I require that APCOA Parking Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it.

6). Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between APCOA Parking Ltd and the owner/occupier, containing nothing that APCOA Parking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

7) A railway car park is not 'relevant land' as it is already covered by statutory byelaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I put the Operator to strictly prove otherwise if they disagree with this point and would require them to show evidence including documentary proof from the applicable Authority that this land is not already covered by byelaws.

8) An initial letter was sent to APCOA after the NTK stating my right to appeal. APCOA failed to respond to this letter and instead engaged a debt collector. It was not until I involved the BPA that APCOA responded replying that they never received my initial letter. Referring to the fact that they did not receive my initial letter APCOA cancelled the case with the debt collection agency and offered me the chance to settle this matter at a reduced rate of £50 if paid within 14 days, after which the cost would rise to £75. The BPA code of practice section 19.7 states that any reduced payment must be at least 40% of the full charge. This would actually result in a payment of £45 meaning that APCOA are failing to adhere to the CoP of the BPA


I'm a bit unsure on the last paragraph as it feels like I'm trying to force it in to include as many points as possible. I also don't know if POPLA would really care about the BPA CoP and as APCOA refer to this as a "gesture of goodwill" I don't know how it really relates to the PCN. I know people have said to ignore the fact about the car being parked outside a designated area, but their photographic evidence actually shows cars parked either side which to me suggests that it didn't obstruct another car park user as they say it could have. But again it feels like I would just be saying it to try and "rack up points" as it were and it could be seen as more of a mitigating circumstance. However I understand the burden of proof also lies with them, which this could imply means their reasons are false as clearly no one was obstructed? (though they could argue it's obstructing a pedestrian walkway I guess)

Coupon-mad

I agree - you don't need point #8 and in fact you need no more than you already have. As the land isn't relevant land you'll win anyway, but probably on 'no GPEOL' in the end. I'd remove point #8 and submit it to POPLA asap.

anothpark

With regards to evidence for my appeal, should I attach all my correspondence with APCOA or just the above as I guess they could send the letters themselves?

Coupon-mad

Just the above - APCOA have to cough up the whole paper trail as part of their doomed evidence pack, which you also get to see and laugh at before you ultimately win!

anothpark

I haven't received any extra information yet, but we received an email today from POPLA stating that APCOA had cancelled the charge!

Thank you so much to everyone here that helped it is much appreciated!

Stroma

Well done on seeing this through