APCOA Luton Airport POPLA appeal

MGA62

Sorry if this is long I will split across a few posts, having received a notice to keeper from APCOA for failing to park in a designated area at Luton Airport, I appealed having first read up on here. The following is my appeal letter

Parking Charge Notice ref number xxxxxxxxxx

It is clear from your Notice of 07/01/2014 that you issued it with a view to pursuing keeper liability under Schedule 4 of the Protection of Freedoms Act 2012 (POFA). The BPA Code of Practice (CoP) supports the need for strict compliance (para 21.5 refers). I write to challenge the Notice and would like to draw your attention to the following (but not necessarily limited to):

• POFA requires that in order to make use of the provision to pursue the registered keeper that you must send a Notice to Keeper within 14 days (paragraph 9, Schedule 4, POFA 2012), you contend the alleged contravention was 14/12/2013, no Notice to Driver was issued at the time. The Notice to Keeper was not received by me until 09/01/2014. You have, therefore, failed to meet that requirement.

• Failing to include specific identification as to who 'the Creditor' may be is misleading and not compliant, in regards to paragraph 9(2)(h) of Schedule 4 POFA 2012. Whilst your Notice 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 some other party. The POFA requires a ‘Notice to Keeper’ to have words to the effect that 'The Creditor is….' and your Notice does not.

• Failure to provide any evidence that APCOA, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions. If you wish to do so I will require a copy of your contract with the landowner/occupier which you are relying upon. If it is a redacted copy then there must still be evidence in the document which shows that the contract complies with the BPA Code of Practice and specifically allows APCOA to pursue these 'charges' in your own name as creditor, in the courts.

• Luton Airport land is covered by statutory bylaws and as such I believe it is not 'relevant land' as defined in Schedule 4, POFA 2012. APCOA is claiming the right to 'registered keeper liability' under the POFA when that right is not available on land covered by local bylaws. If you contend otherwise I will require documentary evidence outlining the existence and wording of any current bylaws or written confirmation from the landowner that there are none applicable at Luton Airport.
I therefore expect you to immediately cancel the ‘parking charge’ and inform me in writing that you have done so. In addition, APCOA are required to remove my personal data (and that of the vehicle) from all formats of storage, immediately following cancellation, since you have no lawful excuse to keep my data. I do not expect to receive a ‘generic’ template response which fails to address the specific issues that I have raised with you. No further correspondence will be entered into. If however, you reject this, then in accordance with the BPA AOS Code of Practice 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.

MGA62

This resulted in APCOA rejecting my appeal with a badly written response that also included several new photos (there had been three in the original PCN) showing a car at various points around the roads at Luton Airport mostly at some distance and alleging the car had parked at the mini roundabout. None of the photos show an open door, a person near the car or any length of time with the car in the same position, the six photos cover 24 seconds. They also state the signs are clear and as a driver it is your responsibility to make sure you follow the instruction on the signage - note the PCN was a notice to keeper.

Remarkably they disputed the 14 days to issue the notice to keeper by saying "once we receive the registered keeper information we issued a notice to customer and no more than six months after the unauthorized parking event" - they even suggested I go to the BPA website to do my research! They also included a small photocopy of where cameras are located and something else with various bits highlighted which is too small to make out what it is meant to be showing.

The upshot is they have given me a POPLA code so I have composed my letter to them again gleaned from here so I would be very grateful if someone could look it over and tell me if it is OK

MGA62

POPLA Ref xxxxxxxxxxx
APCOA Parking PCN no xxxxxxxxxx

A notice to keeper was issued on 7th January 2014 and received by me (the registered keeper of vehicle registration xxxxxxx) on 9th January 2014 for an alleged contravention of ‘01-Failing to park in a designated parking area’. 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) Amount demanded is a penalty not a genuine pre-estimate of loss
2) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
3) Not relevant Land under POFA 2012; no registered keeper liability
4) Creditor not identified
5) Misleading and unclear signage
6) Reasonable cause for requesting keeper details from DVLA
7) No landowner contract nor legal standing to form contracts or charge drivers

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).

2) 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 14th December 2013, and the notice to keeper was received 16 working days later on 9th January 2014.

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 is not compliant with paragraph 9 (2)(h) of schedule 4 of POFA 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.

5) The alleged contravention, according to APCOA, is in 'breach of the terms and conditions of use of the Aiport road infrastructure and signs are clearly displayed'. It would however appear that signage at this location do not comply with road traffic regulations or their permitted variations and as such are misleading - they are unable to be seen by a driver and certainly could not be read without stopping, and therefore do not comply with the BPA code of practice. APCOA are required to show evidence to the contrary.
I would draw the assessor's attention to 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.''

6) 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 does not provide this information; this does not comply with the BPA code point 20.14.

7) 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.
I contend that APCOA Parking Ltd is 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.
I believe there is no contract with the landowner/occupier that entitles APCOA Parking Ltd to levy these charges and therefore it 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. 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.

I therefore request that POPLA uphold my appeal and cancel this PCN.

Coupon-mad

That will win!

The only small points I would say would be change this paragraph:

''...if you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued...''

To get rid of the 'you and 'yours' wording because your appeal is to be read by POPLA who are not the 'you' in question! So ...'if APCOA had wanted...' etc.

And I would personally amalgamate all 3 points about the Notice to keeper wording (2, 4 and 6) into one paragraph instead, where you expand on the 3 fatal flaws under a heading like 'Notice to keeper not POFA2012 compliant - no keeper liability.'

MGA62

Great thanks very much for your reply, I will make the amendments you suggest and send it off.

When the decision comes back I will of course post it up.

MGA62

So having sent off my appeal to POPLA and having been given a mid April date for the result I received a letter yesterday from Roxburghe informing me the "charge" is now £128 and under POFA I as the keeper will be liable and giving me 14 days to pay.

Now I realise this is complete nonsense and I can just say the charge is denied but what I would like to know is the best way to maximise the inconvenience to Roxburghe and APCOA. Letters presumably to BPA and DVLA for trying to get me to payout an increased charge in 14 days when clearly they are aware the case is with POPLA and is not decided until after the 14 days.

Anything else I can do besides letters that may well just be fobbed off?

Coupon-mad

Please search the forum for 'APCOA BPA' as a suggested couple of keywords to read all the dozens of other recent threads like this where APCOA don't call off the debt collectors. This is a sanction points matter I believe, which can seriously affect APCOA if they get banned from getting data for a while. Loads of people have all complained to the BPA about this - by email to Steve Clark and David Dunford (not by letter). As per the post #6 of the NEWBIEs thread.

MGA62

Hi Coupon, thanks for the reply. I had read post 6 and various other threads but they all seem to speak about being chased by APCOA/Roxburghe prior to a POPLA code being given. In my case the appeal is now with POLPA and it seems APCOA are hoping that I might be "persuaded" to pay up before the appeal is heard thus meaning that POPLA will not issue a decision as the charge has been paid.

If the advise remains the same then I will follow it, this just seemed a slightly different tactic to the one I have seen covered in other threads of issue recovery letter and increased charge on the basis of supposedly not having received the "soft" appeal.

In this case the "hard" appeal to POPLA has gone in and they still send out Roxburghe letters.

bod1467

In which case send emails to BPA, and maybe also DVLA (?), about their conduct - once an appeal is made to POPLA then they must stop any further claims activity until the POPLA appeal has been assessed.

As far as I understand, the PPC can receive sanction points from the BPA for this breach of BPA CoP.

Coupon-mad

MGA62 wrote: »

Hi Coupon, thanks for the reply. I had read post 6 and various other threads but they all seem to speak about being chased by APCOA/Roxburghe prior to a POPLA code being given.

I found this one who continued to be chased by debt collector junk mail despite also getting a POPLA code:

https://forums.moneysavingexpert.com/discussion/comment/64994722#Comment_64994722

APCOA are terrible at this and deserve all the complaints they get.

MGA62

Thanks I will ensure some more complaints are added against APCOA this weekend, hopefully eventually there will be enough to get something done about it.