APCOA refused appeal - Luton airport

samjac

Hi All,

I'm new to posting here but have been reading the forum voraciously! I received a "Parking Charge Notice" from APCOA - it include a picture of my car with the brake light showing on the roundabout near the terminal.

I sent them a letter copied off of here and have just received back a notice that my appeal has been rejected along with a POPLA verification code.

I'm not sure what to do next - I'm tending towards just paying the £40 so they go away! Really though I feel they are acting unreasonably and would quite like to make a stand.

I have images of all the letters I've sent but I'm not allowed to include images as new user, so please PM me if you are kind enough to want to read them and I will send you the links.

Thanks for any help you guys take the time to offer.

Sam

AoD

No, don't pay now you have a POPLA code!!!

Read the stickies above, draft out an appeal to POPLA then post your draft here and you will get advice on what you need to change.

samjac

Thanks fro the reply. Something I was confused about was that this was an ANPR camera that photographed the car and I though they had to issue the notice within 14 days. I said this in my letter but they say they have 28 days as they are not using POFA?

bod1467

They are talking utter bull ... if they've given you a POPLA code then they ARE using POFA - POPLA is the appeals process put in place to meet the POFA requirements for such.

Regardless, appeal to POPLA and get this killed off.

kirkbyinfurnesslad_2

Read these decision on how to win at popla.
https://forums.moneysavingexpert.com/discussion/4488337

You need to concentrate on loss and no contract

Dont bother with anything that happened on the day, thats not needed

nigelbb

bod1467 wrote: »

They are talking utter bull ... if they've given you a POPLA code then they ARE using POFA - POPLA is the appeals process put in place to meet the POFA requirements for such

Not so. POFA & POPLA are not related at all save that the government insisted that the BPA Ltd implement POPLA as an 'independent' appeals body when they brought in limited keeper liability in POFA as a sop to the PPCs when clamping was outlawed. However POPLA is not a statutory body nor enshrined in legislation it's just paid for by the BPA Ltd.

Giving motorists access to POPLA as an 'independent' appeals body is a requirement of the BPA Ltd CoP but many PPCs do not invoke POFA but just rely on going old school & harassing & bullying the RK on the balance of probabilities that they were also the driver. Whether the PPC invoke POFA or not they must still provide access to POPLA when they refuse an appeal.

samjac

Thanks for the replies. I have plagiarised another letter that won at appeal recently for the same issue at Luton, as found in the stickies.
Please let me know your thoughts as I will be sending this with my POPLA appeal.

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 02-Dropping/Picking up outside of a designated parking area on 17/10/2013. APCOA Parking issued a parking charge notice because the above vehicle was allegedly recorded on their automatic number plate recognition system.

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 BPA code of practice contains the following:
21 Automatic number plate recognition (ANPR)
21.1 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.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.
21.5 If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that APCOA have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.
Furthermore, the notice to keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on 17th October 2013, and the notice to keeper was received more than 14 days later on 12th November 2013. This is despite the assertion by APCOA that they are “not working under POFA, but according to BPA guidelines and have 28(sic) to send the PCN from the date of contravention”.

3). The BPA code of practice also says '20.14 When you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details. 'The PCN says 'either/or' of 2 different contraventions as a generic catch-all. This does not comply with the BPA code point 20.14.

4). 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).

5). 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.

6). 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.

7). 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.

8). 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.

9) Airport land is not 'relevant land' as it is already covered by statutory bylaws 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 strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws.

samjac

I need to select a reason for a POPLA appeal and have 4 options:

1. The vehicle was not improoperly parked
2. The vehicle was stolen
3. The parking charge (ticket) exceeded the appropriate amount
4. I am not liable for the parking charge

Obviously not 2, but none of the other three really seem appropriate either.

nigelbb

1) As your car wasn't improperly parked
3) As the charge should have been zero
4) As you are not liable for the parking charge for all the reasons stated in your appeal

hoohoo

samjac wrote: »

Thanks fro the reply. Something I was confused about was that this was an ANPR camera that photographed the car and I though they had to issue the notice within 14 days. I said this in my letter but they say they have 28 days as they are not using POFA?

Actually they have even longer if they are not using POFA. As they are not using POFA they cannot pursue the keeper, only the driver.

As long as you have not said who the driver was, include this as an appeal pooint to give the POPLA assessors some variety. Otherwise GPEOL will win the day

samjac

OK, so I have ticked boxes 1,3 & 4 on the POPLA form.

This is the final iteration of my response:


A notice to keeper was issued to me (The Registered Keeper of vehicle reg xxxxxx) for an alleged contravention of 02-Dropping/Picking up outside of a designated parking area on 17/10/2013. APCOA Parking issued a parking charge notice because the above vehicle was allegedly recorded on their automatic number plate recognition system.

My Appeal

The amount of the charge is disproportionate to the loss.
1) 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).

I am the registered keeper and therefore would only be liable if pursued under the relevant sections of the POFA
2) 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.
3) Airport land is not 'relevant land' as it is already covered by statutory bylaws 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 strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws.
4) The notice to keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on 17th October 2013, and the notice to keeper was received more than 14 days later on 12th November 2013. Hence there is no registered keeper’s liability. This is consistent with the assertion by APCOA that they are “not working under POFA, but according to BPA guidelines and have 28(sic) to send the PCN from the date of contravention”.

I am the registered keeper and APCOA have failed to demonstrate any contract between the registered keeper and themselves
5) 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.
6) 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.
7) 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.
8) 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.