APCOA Parking Charge - Luton Airport

Herer

Hi , please can you help.

At the end of October I received a Parking Charge Notification from APCOA from Luton Airport against one of the vehicles for which I am registered keeper.

The sent me a PCN because apparently one of my vehicles with "alleged contravention of 02-Dropping off /Picking up outside of a designated parking area". I don't believe the car was ever parked, the doors opened and passengers got out, total time taken 20 seconds.

( i have scans of their poorly written letters which I'll post as soon as my MSE newbie status lets me include images )

So after looking on some wonderful websites like MSE, I replied with the following:


I am the registered keeper of a Audi motor vehicle registration number {reg number}

I refer to recent PCN dated 30/10/2013.

I assume your “Parking Charge Notice” and the first line being “Notice is hereby served to the registered keeper” that this is a “Notice to Keeper” and along with other references drawn from the Protection of Freedoms Act (PoFA) it is clear that APCOA is dealing with its claim in accordance with the requirements of Schedule 4 of POFA.

The requirements of Schedule 4 PoFA are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.

The BPA Ltd AOS Code of Practice (version 2) supports the need for strict compliance (para 21.5 refers).

APCOA has however failed to comply with the statutory requirements as follows;

Firstly, in regards to paragraph 9(2)(h) of Schedule 4, PoFA 2012. Whilst your ‘Notice to Keeper’ has indicated that you require a payment to be made to APCOA, there is no specific identification of the “Creditor”, who may, in law, be APCOA or London Luton Airport or, some other party.

PoFA requires a ‘Notice to Keeper’ to have words to the effect that “The Creditor is….”

The wording of Paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the “creditor must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.

This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided.

He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”

Secondly, in addition to APCOA’s failure to specifically identify the “Creditor”, it has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.

Thirdly, the most serious failure and that which has given me cause to submit a formal complaint to the DVLA.

You have failed to comply with paragraph 9.4 of Schedule 4 of the Act in that you failed to give the Notice to Keeper to me within the “relevant period”.

The alleged infringement occurred on the 14th October 2013 and no ‘Notice to Driver’ was issued at the time. The Notice to Keeper is dated 30th October 2013 which is 17 days after the event and too late to ensure delivery within the statutory 14 days prescribed by PoFA.

Paragraph 9(4) indicates that the Notice to Keeper must be given to the registered keeper not more than 14 days after the car allegedly infringed the car park terms and conditions. Paragraph 9(6) states that “A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted” which in this case would be the 28th October 2013.

Your company would have been well aware of these facts when it took the decision to send out the Notice to Keeper under PoFA. You have misrepresented the legal position in the full knowledge that there can be no keeper liability.

That is an aggravating feature which the DVLA must take into account in determining what sanction to issue to your company.

I therefore expect you to immediately cancel the ‘parking charge’ and inform me, in writing that you have done so.

If however, you reject this challenge, then, in accordance with the BPA Ltd AOS Code of Practice (version 2) 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer this matter (and any further issues that I may subsequently raise) for their adjudication on the matter.

I do not expect to receive a ‘generic’ template response and which fails to address the specific issues that I have raised with you. No further correspondence will be entered into.

However, they have recently replied rejecting my appeal saying the POFA doesn't apply and I should either pay up or appeal to POPLA. (again I have scans I'll upload later with their response, full of grammatical and spelling mistakes)

So now I have a POPLA code but would be grateful for any assistance you can offer in fighting this! Thanks in advance.

Herer

still can't post as a new user, how many posts are required?

Redx

just post them on a photo sharing website like photobucket or flickr and add the redacted link to them on here so that others can view them and then link them properly for you

its maybe 10 or 12 posts I believe before you can maybe do what you asked

if you have a popla code from them, place a draft version of your popla appeal on here for checking

the newbies sticky thread has links to good templates

hoohoo

The wonderful thing is that now they have agreed POFA 2012 does not apply they can only pursue the driver, so you can add that to your POPLA appeal along with all the other points.

ROFL

The operator has agreed that POFA does not apply and that they can only pursue the driver. As they have not identified the driver, the charge should be cancelled.

see posts #661 and #668 here https://forums.moneysavingexpert.com/discussion/4488337

Umkomaas

hoohoo wrote: »

The wonderful thing is that now they have agreed POFA 2012 does not apply they can only pursue the driver, so you can add that to your POPLA appeal along with all the other points.

ROFL

The operator has agreed that POFA does not apply and that they can only pursue the driver. As they have not identified the driver, the charge should be cancelled.

see posts #661 and #668 here https://forums.moneysavingexpert.com/discussion/4488337

They really should stop pointing that gun at their feet. They seem to be utterly clueless about the implications of what they are saying here.

In parallel with drafting your POPLA appeal, I'd be tempted to write to APCOA saying that as they are not pursuing this under PoFA then they should be pursuing the driver, not the RK. So please now write to the driver!

Umkomaas

Here is a good start for a POPLA appeal. Very similar circumstances to yours but at Humberside Airport, with the PPC being VCS. Same dodgy practice with an ANPR periscope van.

https://forums.moneysavingexpert.com/discussion/4812916

Herer

Brilliant stuff, thank you all.

using JesterA1's wording as a foundation I've drafted my own POPLA appeal wording, please could you let me know if there's anything which needs changing? Thanks again


I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.!

1) The amount demanded is a penalty and not a genuine pre-estimate of loss.

The charge given is not a genuine pre-estimate of loss as no losses have occurred; therefore this is unfair as stated in the Unfair Terms in Consumer Contracts Regulations 1999. In particular,!Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 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." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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 amount claimed is excessive, punitive and is being enforced as a penalty for allegedly stopping.

2) Not Relevant Land under POFA 2012.

The driver has not been identified, yet APCOA are claiming POFA 2012 registered keeper liability for the charge. As London Luton Airport is designated as an airport by the secretary of the state, the roads within the airport are subject to airport bylaws so POFA 2012 does not apply, meaning the registered keeper is not liable for this charge. Also POFA does not apply to this charge because POFA relates to parking charges and APCOA have said the vehicle had stopped on a roadway in which stopping was allegedly prohibited and not in a car park. Due to this they must chase the driver and not the registered keeper of the vehicle as according to section 4(1)!of the Unfair Contract Terms Act 1977 : "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.”

3) No landowner contract.

As APCOA are not the land owners they can’t form a contract with the driver of the vehicle. I would like APCOA to provide me with a full un-redacted copy of their contract with the landowner which allows them to make such contracts. A witness statement as to the existence of a contract is not sufficient. I believe there is no contract with the land owner giving APCOA the legal standing to impose these charges and pursue them in courts in their name as creditor.

4) No Contract with the driver.

If a contract is to be formed, by entering the site a driver must be able to read, understand and agree to the terms and conditions. A driver could not stop in order to read the signs as they enter the road as they would block the junction and cause obstructions. Also as APCOA are only an agent working for the owner, signs do not help them to form a contract.

5) The signage is both unclear and inadequate.

The alleged offence is “stopping on a roadway where stopping is prohibited” The signs at this location do not comply with the road traffic regulations or their permitted variations making them unclear and misleading. If I could also point out to you the “No Stopping Zones” section of the chief adjudicator’s first annual POPLA report 2013:

''It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it.''

I request that my appeal is upheld and the charge dismissed.

Umkomaas

Looks fine Herer.

What is now becoming a recommended norm is that each of your appeal point headings are also placed at the opening of your appeal, in a numbered list, as follows.

1) The amount demanded is a penalty and not a genuine pre-estimate of loss.
2) Not Relevant Land under POFA 2012.
.... etc, etc

I'd embolden them and also embolden the corresponding heading above each appeal point.

I'm not sure when your POPLA deadline is (don't miss it as there is no flex available to you) but leave this up for the next 24 hours for others to have the opportunity for any comments - but only if time allows.

If you're submitting it via the POPLA website appeals' portal, you might get an 'invalid verification code' message - this is a conflict issue with one of the internet browsers, if you get the message, try a different browser to access the website.

I'd also snail mail it as 'insurance', with free proof of posting via your local PO, but make sure on the printed appeal you include your verification code on each page. Staple all together rather than paper clip.

You should get an acknowledgement from POPLA with an estimated date for dealing with the appeal - about 5 weeks from receipt.

Herer

POPLA appeal confirmed on or after 9th Feb.

But I have received a letter from Roxburghe which says APCOA have instructed Roxburghe to extract recovery and administration charges in lined with a new 'Total Amount Due' now at £128.00.

Interestingly this says "A notice was sent to you, as the registered keeper of the vehicle indicatating that you could be liable for this charge if it remains unpaid, under the Protection of Freedoms Act 2012. This letter provides notification that you are now liable for the charge and that the Total Amount Due as shown above, is payable within the next 14 days". This is interesting because APCOA said POFA didn't apply which is why the charge stood despite them failing to notify the RK within 14 days.

Should I wait for POPLA, or do I need to respond to Roxburghe?

Redx

I would do as the sticky threads clearly state, ignore DR letters

https://forums.moneysavingexpert.com/discussion/4816822

as its with popla, let them deal with it

if you are really annoyed, you could send one strong letter to DR denying the claim, saying its with popla and telling them to refer back to creditor

personally, I would ignore the letter (but keep it as evidence) and get on with your life

The_Deep

My advice would be to play hardball, and ignore everything from now on until a court claim pops through the letter box. OK, a Popla appeal which cost them £32, put think how much you could cost them if they were daft enough to take you to court.