POPLA Appeal - Draft for comments appreciated

marpol456

First draft for comment appreciated






POPLA Verification Code: (to be inserted)
Vehicle Registration: (to be inserted)
PCN Ref: (to be inserted)
Alleged Contravention date and time: (to be inserted)
Date of initial notice: (to be inserted)
Date of my response: (to be inserted)
Date of rejection to my response: (to be inserted)
Parking Charge Amounts: (to be inserted)


Dear POPLA assessor

As the registered keeper of the above vehicle, I am appealing against the Parking Charge Notice issued against this vehicle on the grounds stated below..

1) The notice was issued out of time and is therefore not valid.
2) Amount demanded is a penalty not a genuine pre estimate of loss
3) Not relevant Land under POFA 2012; no registered keeper liability
4) No landowner contract nor legal standing to form contracts or charge drivers or Keepers
5) No Contract with driver
6) Misleading and unclear signage
7) The alleged contravention did not take place
8) Non-compliant ANPR 'hidden camera van' at this location which is not a car park


1)The notice was issued out of time.
The original notice was issued to myself as the keeper of the vehicle on (date to be inserted) for an alleged offense on (date to be inserted) .This is outside the 14 days allowed for notification to the keeper under POFA. I pointed out in my letter of (date to be inserted) that I expected APCOA to cancel any charges. APCOA state in their follow up letter of ( date to be inserted) that "if POFA is not mentioned then the notice needs to be issued within 35 days of Contravention". If POFA does not apply then they are unable to pursue the Keeper. Either way therefore the Payment Charge Notice has been invalidly issued, and this appeal should be upheld.

2) The amount demanded is a penalty and not a Genuine Pre-estimate of loss.
The parking charge does not represent a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. As APCOA are alleging a 'failure to comply' yet cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which renders this charge unenforceable.



3) Not Relevant Land as defined under POFA 2012; no registered keeper liability.
The driver has not been identified, yet APCOA are claiming POFA 2012 registered keeper liability for this charge. The registered keeper is not liable for this charge as Birmingham Airport is designated as an airport by the Secretary of State and therefore roads within the airport are subject to airport bylaws and so POFA 2012 does not apply. 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 covered by bylaws.


4) No landowner contract nor legal standing to form contracts or charge drivers or Keepers
As APCOA are not the owners of this land and as such they cannot form a contract with the driver or Keeper, I wish APCOA to provide me with a full un-redacted legally certified by an independent solicitor as a true copy of the original copy of their contract with the landowner which allows them to form such a contract. A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives APCOA the legal standing to levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849 16.5.2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, APCOA have breached the BPA Code of Practice section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable.


5) No contract with driver.
If a contract is to be formed, upon entering the site a driver must be able to read, understand and agree to the terms and conditions (see 'misleading and unclear signage' below). A driver could not be expected to stop in order to read non compliant located signs as they enter the road. In any case, as APCOA are only an agent working for the owner, mere signs do not help them to form a contract. 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. In this instance, there was no contract formed whatsoever. , no consideration was capable of being offered to the driver, and no pertinent signs were clearly visible .


6) Misleading and unclear signage.
The alleged contravention according to APCOA letter dated (date to be inserted) is "failing to Park in a designated parking area" which further refers to "Breach of the terms and conditions of use of the hotel car park". APCOA change this claim in their later latter dated (date to be inserted) to "A restricted area" which is in fact an access road, that the signage refers to as a "Restricted Zone" No Stopping at any time to drop off or pick up". The 3 photographs relied on by APCOA show the alleged offending vehicle on this road for circa 13 seconds with no evidence that it was actually stopped or picking up or dropping off. The signage is also unlawful. The signage is on the opposite side of the road to the vehicle as evidenced in the photographs, and parallel to the highway. Clearly to be read from the vehicle s location a vehicle must be stationary. The signs at this location do not comply with road traffic regulations or their permitted variations and as such are misleading. Any signs in this area do not face the oncoming traffic so they are unable to be seen by a driver and certainly cannot 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.''


7) The alleged contravention did not take place.
APCOA have provided evidential photographs which allegedly shows the vehicle to be stationary at this location, the photographs spanning a period of 10:58:34 to 10:58:47 do not prove the vehicle to be stationary and not moving or picking up or dropping off as per the non compliant sign requirements.

8) Non-compliant ANPR 'hidden camera van' system at this location which is not a car park
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.''

At this location, the secret camera van does not operate in a reasonable, consistent and transparent manner and I contend that APCOA have failed to meet the requirements of all of the above points in the BPA Code of Practice. They will need to show evidence to the contrary on every point, and explain how this hidden camera van can be compliant when this is not a car park, it is a road,
There is no opportunity for drivers in moving traffic to be informed that this technology is in use and what APCOA will use the data captured by ANPR cameras for. APCOA have breached the BPA Code of Practice. as regards the use of a non-compliant ANPR system being merely a van fitted with a hidden camera, patrolling land which is not a 'car park' and neither 'managing, enforcing nor controlling parking'.

Coupon-mad

Looks good to me, seems all relevant as long as it seems as if this ticket was issued after pics were taken by a camera van (you can tell by the angle of the photos). Please ask the Board Guides to merge this with your original thread though as we do not need new threads - in fact it doesn't help because we can't look back and see your PCN situation and background posts and no-one has time to flick between two threads.

Or is it four threads?

https://forums.moneysavingexpert.com/discussion/4941164

https://forums.moneysavingexpert.com/discussion/4929300

https://forums.moneysavingexpert.com/discussion/4892005

?