APCOA Parking Fine - Birmingham Airport

hoppy7

Hi Guys

Another NEWBIE seeking a little advice. After doing a little (a lot) homework on this site before sending my appeal to APCOA, I finally received a reply well over a month later !!
Please find below my original letter & APCOA reply, minus any personal details.
I was wondering if any of my fellow forum members could advise me of a suitable letter to send to POPLA (code provided by APCOA) as I'm now becoming a little confused with all the different advice given over a long period of time and i don't want to write the wrong thing.
Am I fighting a losing battle ?
Also, there are conflicting views on the 14 day rule ( NOTED APCOA APPEAR TO BE UNDER THE IMPRESSION THAT IT WAS OK FOR THEM TO SEND IT WITHIN 14 DAYS AND NOT TO BE IN MY HAND WITHIN 14 DAYS).
Here's hoping some of you can help me in my hour of need !!
Apologies if my letter was wrong in anyway or any details were missed out as my mind has become very clouded.
]
ORIGINAL LETTER

APCOA Parking
Po Box 1010
Middlesex
UB8 9NT
10th February 2014

Dear Sir/Madam
As the registered keeper of ***** I’m in receipt of your parking invoice dated 07/02/2014 and deny any liability to pay this charge.
Following legal advice, I wish to challenge this PCN.
My challenge is partly based on the assertion that your parking charge does not represent a genuine pre-estimate of loss to yourself or the landowners.
If you wish to enforce a no – stopping zone in one place and provide a drop – off area in another, then this must be readable 24/7 in all daylight and weather conditions crystal clearly with multiple signs in order to avoid any possibility of confusion and forcing drivers to stop and read the signs. Your signage failure not only breaches your own industry code but is also unfair and a breach of the Consumer Protection from Unfair Trading Regulations 2008 and the unfair terms in the Consumer Contracts Regulations 1999.
The driver has not entered into any contract with APCOA and as the registered keeper I am not liable either.
Also, by law, the Parking Invoice sent by APCOA Parking did not arrive within 14 days of the alleged contravention 25/01/2014. The notice is dated Friday 07/02/2014 and arrived by post on Monday 10/02/2014, a total of 15 days, even if you count from the day after the alleged incident took place. Therefore a complaint will be forwarded to the DVLA and the Information Commissioner as information has been released to APCOA unlawfully.
If you do reject the challenge and insist on taking the matter further I must inform you that I may claim my expenses off you.
The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses, legal fees, etc.
By continuing to pursue me you agree to pay these costs when I prevail.
Please issue your cancellation within 14 days of this letter or forward a POPLA Verification Code.



Yours Sincerely


APCOA REPLY 17/03/14

Thank you for your letter of appeal against the Parking Charge Notice issued by us to you on 07/02/2014.

All restricted areas are signposted and clearly state that no Dropping off/ Picking up outside of the designated parking area is allowed at any time or entry unless authorized by the BIRMINGHAM INTERNATIONAL AIRPORT or any other authorized bodies. Restricted areas are all monitored by CCTV and number plate recognition is in operation. Anyone in contravention of this restriction will be liable for a Parking Charge Notice of up to £100.00.

As a registered keeper of the above vehicle this notice is your liability unless you provide us with driver's information. By entering the land the driver agrees to abide by the terms and conditions.
Contravention took place on 25/01/14 and notice was sent on 07/02/14, thus on 14th day.

As your vehicle was parked in contravention of the terms and conditions of the car park we are satisfied that the above notice was correctly issued in accordance with the BPA code of practise and are not able to waiver the charge on this occasion.

APCOA is not liable to justify the charge as section 19.5 of BPA guidelines state that the operator needs to justify the charge in advance if the charge is more than £100, if the charge is not more than this the operator does not need to justify the charge.

You now have a number of options;

1. Pay the Parking Charge Notice at the discounted price of £50.00 within 14 days. Please note after this time the Parking Charge Notice will increase to £100.00.

You can pay via the following channels:
Online: Via the website, not able to post link
By Post: APCOA Parking, PO Box 1010, Middlesex, UB8 9NT (Cheques and Postal Orders Only)
By Phone: Via our manned Customer Services Centre on 0845 303 7397

2. Make an appeal to POPLA - The Independent Appeals Service by completing the accompanying form. Please be advised that if you opt for independent arbitration of your case, the Parking Notice will increase to full amount of £100.00.

3. If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with court action against you.



Thank you :beer:

da_rule

Post number 471 of this thread: https://forums.moneysavingexpert.com/discussion/comment/63651104#Comment_63651104 gives you a successful POPLA appeal concerning APCOA. I would suggest you edit it to suit your needs then post it back on here for comments.

ColliesCarer

hoppy7 wrote: »

I was wondering if any of my fellow forum members could advise me of a suitable letter to send to POPLA (code provided by APCOA)

Am I fighting a losing battle ?

Also, there are conflicting views on the 14 day rule

Hi Hoppy - welcome
If you read post #3 of the NEWBIES thread regarding POPLA appeals you will find specific examples for APCOA appeals in the HOW to win at POPLA link - also if you search the forum for "Birmingham Airport" you will find useful information posted by others dealing with the same PPC at the same place.

No- you are not fighting a losing battle - you are fighting a battle that has a greater that 99% chance of success if you follow the advice and put together a winning POPLA appeal.

Forget about the initial appeal to APCOA and the circumstances - they are largely irrelevant now. What matters are the key legal arguments that time and again have won at POPLA.

Re the 14 days - it begins the day after the alleged event so by day 15 counting from the date of the alleged event it must be RECEIVED - and that's within that time not just posted.
Letters are presumed to have arrived within two working days (excludes Sat and Sun) after posting so in your case as it was dated the 7th it is presumed to have arrived by the 9th (however 7th was a Friday) so the 11th.

By my reckoning you should have received it by the 8th - it's tight because the 8th was a Saturday but I think it's 14 calendar days that applies for receipt.
So I think you will have an extra appeal point to add to your POPLA - no keeper liability as Ntk arrived out of time to comply with POFA 2012.

So check out the info on NEWBIES - select an appeal that you can adapt - then post it up for comments and fine tuning

hoppy7

Thank you all for your advice, please find below the draft letter to be sent to POPLA. Would welcome your feedback or any other details I may have missed.

Thanks:)


REASONS FOR APPEAL

1) The amount of the charge is disproportionate to the loss incurred and does not represent a genuine pre-estimate of loss to APCOA or the landowners, 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).


NOTICE TO THE KEEPER NOT POFA 2012 COMPLIANT – NO KEEPER LIABILITY

2) If APCOA wanted to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and they had 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 25-01-2014, and the notice to keeper was received 16 days later on 10-02-2014. They have, therefore, failed to meet that requirement.

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.



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 ask the Operator for 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 alleged contravention, according to APCOA, is in 'breach of the terms and conditions of use of the Airport road infrastructure and signs are clearly displayed'. It would however appears 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.''


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.
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.

Please note the above points and observations were highlighted to APCOA PARKING on my appeal letter dated 10-02-2014


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

ColliesCarer

Hi Hoppy,
Looking good - just have a few suggestions

A) Put headings in bold on each of your points and do a list at the start so that the assessor knows what you are raising and doesn't miss any key points (has happened!).

Suggested headings and list :-
1) Not A Genuine Pre-Estimate Of Loss
2) Notice To The Keeper Not Pofa 2012 Compliant - No Keeper Liability
3) Airport land is not 'relevant land'
4) Non compliant signage
5) No legal standing or authority

I would also suggest putting in some line spacing between headings and points - makes it easier for the assessor to read as it makes things stand out more.

C) Check for and expand any abbreviations e.g. PCN - full "Parking Charge Notice" or just the word "charge", NtK - Notice to Keeper etc

for example
"1) Not A Genuine Pre-Estimate Of Loss

The amount of the charge is disproportionate ......I also consider the charge to be a penalty because ....."


D) Would also suggest trimming down point 2. You've no need to give the dates etc - you make the challenge - leave them to prove you're wrong - then when they provide their evidence pack they have to send in a copy of the notice they sent you - and so hang themselves and if they don't supply it they fail to address the point - and you can send a copy later once you have received their evidence. (point to bear in mind - you can send additional information/evidence right up to the date of the hearing)

So some suggested wording for point 2 to tighten up your current point:-

"2) Notice To The Keeper Not Pofa 2012 Compliant – No Keeper Liability

As no notice to driver was issued, the notice received was a notice to keeper which stated it had been issued under POFA 2012, however, in order to claim keeper liability such a notice must meet the statutory requirements given under section 9 of POFA 2012 Schedule 4. I believe APCOA have failed to comply with the statutory requirements in the Notice to Keeper as follows:-

a) it 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.

b) it was received out of time for Keeper Liability to apply (POFA Schedule 4 point 9(4) and 9(5)).

Consequently I contend that the keeper is not liable for this charge and respectfully request that my appeal be upheld.

APCOA have failed to address this challenge in my appeal to them and if they dispute my contention I require them to evidence their compliance to POPLA."

E) And lastly would suggest your last line is edited to read as follows:
"I therefore repectfully request that POPLA uphold my appeal and instruct APCOA to cancel this Parking Charge Notice."

Hope that helps - but hang fire for others to comment too - more heads are better than one

da_rule

I agree with ColliesCarer, use numbered headings to make it easier to read.

hoppy7

Hi Collies Carer thank you very much for your time and help in my matter.
I do have one question, you say in your reply to point number 2 " The notice received was a notice to keeper which stated it had been issued under POFA 2012".
On my replies from APCOA they have not mentioned POFA 2012.
Does that change my appeal letter / your wording of point number 2?

Regards

Hoppy 7

ColliesCarer

Hi Hoppy,
Yes it does - alternate wording supplied in response to pm - post up your final draft for comment by other forum members before submitting
regards CC

hoppy7

Hi Guys

Thanks to ColliesCarer and Da_Rule for all your help and comments. I have attached a copy of the updated letter to Popla, I would appreciate any more comments or advise before emailing.

Thanks
Hoppy 7:beer:


REASONS FOR APPEAL

1. Not A Genuine Pre-Estimate Of Loss
2. Notice To The Keeper Not Pofa 2012 Compliant – No Keeper Liability
3. Airport Land Is Not ‘Relevant Land’
4. Non-Compliant Signage
5. No Legal Standing Or Authority


1. Not A Genuine Pre-Estimate Of Loss
The amount of the charge is disproportionate to the loss incurred and does not represent a genuine pre-estimate of loss to APCOA or the landowners, contravening the Unfair Contract Terms Act 1997. I also consider the Parking Charge Notice 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 not the POPLA fee).


2. Notice To The Keeper Not Pofa 2012 Compliant – No Keeper Liability
The notice received was the notice to keeper and no notice to driver was given. APCOA have failed to establish a right to claim unpaid charges from the keeper as by failing to give a notice to keeper in accordance with paragraph 9 they have not met the requirements of POFA 2012 Schedule 4 Section 4(2) (a), in that the notice to keeper: -

a) it 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.

b) It was received out of time for Keeper Liability to apply (POFA Schedule 4 point 9(4) and 9(5)).

Consequently I contend that the keeper is not liable for this charge and respectfully request that my appeal be upheld.

APCOA have failed to address this challenge in my appeal to them and if they dispute my contention I require them to evidence their compliance to POPLA."


3. Airport Land Is Not ‘Relevant Land’
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 ask the Operator for 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. Non-Compliant Signage

The alleged contravention, according to APCOA, is in 'breach of the terms and conditions of use of the Airport road infrastructure and signs are clearly displayed'. It would however appears 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.''

5. No Legal Standing Or Authority
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 Parking Charge Notices, 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.

Please note the above points and observations were highlighted to APCOA PARKING on my appeal letter dated 10-02-2014.


I therefore respectfully request that POPLA uphold my appeal and instruct APCOA to cancel this Parking Charge Notice.

ColliesCarer

Hi Hoppy,

That's looking good.

I found the POPLA assessor's comment below on validity of a notice to keeper while researching other stuff.

You may wish to include it after b) in your point 2 - often helps to include comments other assessors have made.

POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued.