POPLA appeal letter, please help

Twigs11

Hello, would someone mind please checking my appeal letter? I sent a letter previously before reading the threads to say I had made a payment to park that day, to which they replied to say yes I did pay but this was 49 minutes outside of their grace period of 30 minutes therefore I will still have to pay the £75 fine. They sent a POPLA form, which I have now filled out, and this is the letter I was thinking of attaching..

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 a vehicle being improperly parked on private land. APCOA Parking issued a parking charge notice because the above vehicle was allegedly recorded on their automatic number plate recognition system. The keeper challenged this appeal as a payment was made on the day to park but was 19 minutes outside of the grace period offered.

My Appeal.


1). 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 xx April 2013, and the notice to keeper was received 30 days later on xx May 2013.

2). 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.

3). 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).

4). 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.

5). 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.

6). 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.

7). 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.

Yours sincerely,

Coupon-mad

This can be made much stronger as I don't think this NTK was compliant in wording, with POFA2012 was it?:

2). 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.

AFAIK APCOA do not even mention the POFA2012 on most NTKs, let alone include the wording needed. So it's not just about the BPA CoP, more important is to say that a NTK that doesn't meet the POFA2012 Schedule 4 wording means there is 'no keeper liability' at all. Check the wording against the link to POFA2012 in the NEWBIES sticky thread. The NTK must have all the wording in paragraph 8 if there was a windscreen ticket at first, or para 9 if no windscreen PCN.

If not then there is NO keeper liability - slam dunk, you win if you've never said who was driving.

Twigs11

This was my previous letter sent to them, I hope saying "I" throughout does not specify who was driving at the time?! I didnt say I was driving?
If that was ok shall I change the wording then for point 2 to say "a NTK that does not meet the POFA2012 Schedule 4 wording means there is 'no keeper liability'" ?
To Whom It May Concern,
I am writing to challenge a letter sent to me regarding an unpaid Parking Charge Notice: xxxxx
Vehicle Registration: xxxxxx
I had three payments taken out of my account from APCOA Parking since the original notice, I am completely sure I have paid for this ticket having never made a late payment, I would like you to double check it was not one of the following payments made on these dates which I would have paid online. These payments were checked via online banking taken from yourselves:
* shown payments made
Please check it was not one of these payments.
This is the wording then from Paragraph 8 I should copy all of this yes?
8(1)A notice which is to be relied on as a notice to keeper is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)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;
(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph.... and
(d)if the unpaid parking charges specified in that notice to driver as required by paragraph... have been paid in part, specify the amount that remains unpaid, as at a time which is—
(i)specified in the notice to keeper, 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 (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (if it is sent by post) or given (in any other case).

Coupon-mad

I would do, and have, copied the entire paragraph into POPLA appeals before, yes. As long as it was a windscreen ticket at first then para8 applies. You can probably see for yourself where they haven't complied or used the exact words they should.

And no, it doesn't read as if the driver has been divulged - a payment could be made by the passenger or the keeper or anyone, not just by the person in the driving seat that day. So you haven't said who was driving and can continue to write as the keeper (who isn't liable!).

Twigs11

Hello, I didnt want to start a new thread, I just wanted to say I won on the above notice - it reached POPLA and I won on the one point that it was not a loss to them! So thank you for your help on that

However, I've now received out of the blue a DRP letter, with no previous letters from APCOA about another parking offence where I hadnt paid for a ticket. I read through all the forums and sent one of "Daisys" letters that I had copied from the forum (starts:

"Firstly I have no intention of paying the money demanded by your client, and any court proceedings will be vigorously defended.

Second, should it be your client's intention to start court proceedings they must provide a Letter Before Claim which complies with the requirements of Annex A Para 2 of the Practice Direction..."

DRP have text me almost daily saying I need to call them, I receive calls, and now I've had a reply letter stating:

"Thank you for your recent Communication...
As per the British Parking Associations Code of Practice, Point 22.7 the driver/keeper/hirer was allowed 28 days from the date the PCN was issed to challenge the PCN. The time to challenge the charge has now expired and therefore access to the Independent Appeals Service (POPLA) is no longer available.

However, in order to resolve this matter, I will offer the following comments as to why this PCN was correctly issued and is still payable in full.

My findings

The site in question is subject to terms and conditions, which are stated on signs throughout the area. Those signs state that drivers must clearly display a valid pay and display ticket for the site. They also warn that failure to do so may result in the issue of a PCN.

On the date in question the vehicle was parked on the site but no valid pay and display ticket was clearly displayed. This mean s that the terms and conditions were breached and a PCN was correctly and legitimately issued and placed on the vehicle for notification purposes.

Internet templates

I must also stress that simply sending in standard template responses, most likely obtained from the internet, will not resolve the matter. In addition, I would recommend that professional legal advice be sought on this matter as an alternative.

Court action

Within the correspondence, court action has been referred to. As such, I feel obligated to inform you that, under the Pre-Action Protocol of the Civil Procedural Rules, court action must only be viewed as a last resort. I am attempting to abide by this direction by trying to settle the matter amicably without court involvement.
Your actions may be viewed as obstructive to this aim and will be made clear to the court should the matter escalate to such a stage.

What you need to do now

(states that I need to pay the £125 amount by 16/06/2014)

What will happen if you do not pay what you owe

If you do not pay the full amount by the date shown above, I will pass your case to our legal team, who will consider taking legal action to recover what is due.

What if you do not agree

Although any correspondence that does not provide further evidence will be noted and retained, I cannot guarantee that we will reply to it.

More information

This parking charge has been issued under the terms of the Protection of Freedoms Act 2012. To comply with that act, we may need to write to you at specified times until the account is settled."

... How do I reply to this? As now I have missed their "deadline" and they are aware I have copied letters off the internet.. I do know lawyers... Should I ask them for some help in sending a letter on their letterhead for example? I dont want them calling me and sending texts anymore I'd like them to stop! Any help much appreciated

Redx

well done on your previous victory

as for apcoa

ignore DRP and dont phone them or speak to them, they are powerless and can do nothing at all so dont give them the time of day

if this is a different apcoa parking charge , I would send the appeal template letter direct to APCOA with the pcn reference and treat this as the first NTK (the first time you have heard about it) , see what they come back with

and ignore DRP (did I mention ignore DRP ? ,- if I didnt , then I say again , ignore DRP) lol

however, if this is in regards to the original apcoa pcn mentioned earlier from post #1 , then as popla ruled in your favour DRP cannot do anything at all about it, so complain to the BPA and the DVLA and enclose all correspondence so they can both investigate this matter , including a copy of the popla letter with your verdict on it and the reference number

complaint details in post #6 of the newbies thread

Twigs11

Ok perfect thank you I know you read these people are powerless, but they sure do know how to scare you! So - I can ignore DRP! Ignore them, and they go away?? I hope so!

I will do as you say though and contact APCOA with an original appeal letter as this pcn is different to the 1st post - as I say I received nothing from them, I didnt even get the ticket on my car otherwise I would have appealed to POPLA as I did the first one! No longer at my old job now so never have to deal with these people again once I've sorted this!

These pages are so helpful though, thank you again.

Coupon-mad

Complain to the BPA about the letter and state you have never received any PCN with that number on it. Both DRP and APCOA are BPA members. Email addy for the BPA is in post #6 of the NEWBIES thread.

Twigs11

Is this letter ok to send to APCOA? I did have a look at #6 post in the newbies thread, it gave a writing address for BPA... Should I send a complaint letter along similar lines to them or send this to APCOA first and see what they say? If they say its too late to appeal for POPLA then I thought perhaps sending the complaint letter stating "This is not an appeal" given on the threads.

To Whom it May Concern

Notice Number: XXXXXX

I refer to a letter sent to me by DRP requesting I now deal with them on the above PCN.

For your information, I have already contacted them and denied the existence of any debt owed.

I received no NTK or any other correspondence from you regarding a PCN or a chance to appeal with POPLA, and there is nothing whatsoever to prevent your company from considering a challenge at any stage.

Refusing access to your industry's alternative dispute resolution procedure would be unreasonable and a breach of the Civil Procedure Rules. As far as I am concerned, I have made a valid challenge, if I do not receive a clear rejection along with a POPLA code within 35 days of the above date, I will regard the challenge as accepted and the matter closed.

I will not respond to any communication from DRP, I suggest that you pass my challenge on and alert them to its urgency.

Yours faithfully

Coupon-mad

I received no NTK or any other correspondence from you regarding a PCN or a chance to appeal with POPLA, and there is nothing whatsoever to prevent your company from considering a challenge at any stage.

Refusing access to your industry's alternative dispute resolution procedure would be unreasonable and a breach of the Civil Procedure Rules. As far as I am concerned, I have made a valid challenge, if I do not receive a clear rejection...

The two parts above appear to contradict each other, as you haven't appealed as such. I would add a short appeal within the body of that letter saying something like:

'Because you failed to send me any Notice to keeper I have no idea about the allegation but I know that there is no keeper liability without a Notice to Keeper. Further, I know that your charges are not a genuine pre-estimate of any loss because I have won a POPLA appeal on that basis regarding another unwarranted 'ticket' from your firm in a case where you did bother to send a (non-compliant) NTK. In this 'new' case you haven't sent me anything so you are harassing me as keeper without justification and I intend to report this to the DVLA and BPA Ltd.

Then you can continue: 'Refusing access to your industry's alternative dispute resolution procedure would be unreasonable and a breach of the Civil Procedure Rules. As far as I am concerned, I have made a valid challenge, if I do not receive a clear rejection... '


P.S. And to see umpteen versions of that DRP template letter discussed on here already, try putting 'my findings' as keywords into the 'search this forum' heading next to 'forum tools' on page one above the stickies! His findings are always the same!

Twigs11

Hello,
I just wanted to say that I received another two debt recovery letters from the last letter I sent a couple of months ago, one from a new and different company - Zenith. I have read on here about Zenith and that it is just another company they use, and the advice there was to ignore it all and they will just go away...But that was advised in 2009? Is this still the case? It seems whenever I write them they come back with more excuses and their "pay it now!" attitude. I am worrying as another friend who took advice from here has just been told by her bank that she can no longer take an extended mortgage out due to some sort of debt/court notice on a ticket she didn't pay which has now affected her credit rating. She took notes from here and sent letters as advised then came the court letter which she believed to be a fake... So they do have the power of court action?? I would like them very much to just go away and if ignoring them is the case then so be it!

Many thanks,