Apcoa rejected first appeal

eire13

Hi everyone,

I hope you can help me out. Like many others I received a PCN from Apcoa at luton Airport for parking in the wrong place for a few minutes. The driver was a bit confused and didn't see any signs while the passenger jumped out. This was at the beginning of March and the PCN came through after the 14 days. I started doing my research online (which I will have to refresh on as I found it a bit confusing). Anyway I appealed the PCN going on guides from this site. I said they had failed to issue the notice within 14 days. But they have written back saying they have 28 days? They have supplied me with a POPLA code but I really need help now with doing this. I have read the grounds of appeal on the POPLA form they have sent with their letter and I can't really see that any apply. Please can someone help with this as I am worried now.

ColliesCarer

No need to worry about the grounds they list - when you get to the stage of submitting your appeal you will tick all except the car was stolen one.

But that's getting ahead of ourselves a bit - for now concentrate on pulling together your winning appeal - see the NEWBIES thread post #3 How to Win at POPLA for various appeal templates especially ones relating to Airports.
Also use the search the forum function using search terms Luton Airport and APCOA to find suitable appeals.

I think for Luton Airport you will will find that it is not relevant land and therefore there is no keeper liability but also include
Not a genuine pre estimate of loss
No authority/legal standing
Non Compliant signage therefore no contract with driver

Select one to adapt then post up your draft for help fine tuning

eire13

Thank you so much Collies Carer. I will start reading and post up the draft as soon as possible. Glad there are people to help with things like this they are very stressful !

eire13

Hi,

This is what I have come up with so far basically copied and edited from other people's posts. Could someone please read and advise. Also if I do lose which hopefully not would I have to pay the £80.

POPLA Ref xxxxxxxxxxx
APCOA Parking PCN no xxxxxxxxxx

A notice to keeper was issued on 2nd March 2014 and received by me (the registered keeper of vehicle registration xxxxxxx) on 19th March 2014 for an alleged contravention of ‘02-Dropping off/Picking up outside of a designated parking area’. APCOA Parking issued a parking charge notice because the above vehicle was allegedly recorded on their automatic number plate recognition system. 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
8) You did not acknowledge my appeal with 14 days.
9) ANPR Accuracy


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 2nd March 2014, and the notice to keeper was received 17 days later on 19th March 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 Airport 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.'' The sign near where the driver stopped is also situated on the passenger side of the road on a standard right hand UK car and is situated around 6-8ft high on a pole, this makes it difficult for drivers to see or read from inside the car regardless of which side of the road the area is entered from.
As a POPLA Assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

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.

8) I appealed this ticket on 20th March which APOCA would have received on 21st March. They did not acknowledge my appeal within 14 days timescale 22.8 in the BPA Code of Practice. I only received a reply with a letter dated 25th April received on 29th April rejecting my appeal.
9) ANPR Accuracy Under paragraph 21.3 of the BPA Code of Practice, it requires parking companies to make sure ANPR equipment is maintained and in correct working order. I require APCOA Ltd. to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important as the parking charge issued is founded entirety on 3 photos of my vehicle entering the alleged no stopping area and leaving the area at specific times. It is vital that APCOA produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye Ltd. v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require APCOA. to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this area, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon three timed photos, I put APCOA. to strict proof to the contrary.
In addition, 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.''

APCOA fail to operate the system in a 'reasonable, consistent and transparent manner'. As APCOA place signs too high to see on arrival, there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.
This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if APCOA fail to address and provide the necessary evidence as requested in the points highlighted above. I therefore request that POPLA uphold my appeal and cancel this PCN.

Also do I need to write to APCOA and tell them I am going through the POPLA stage?

Thanks in advance for any replies.

ColliesCarer

No you don't need to let APCOA know - POPLA will communicate with them

Re: The £80 - in the highly unlikely event that you did not win at POPLA, yes the charge will most likely be the £80 - it's a deliberate scare tactic to put people off appealing - don't fall for it. Forum aided appeals win.

Your appeal is looking pretty good already and is almost there.

I've only got a couple of suggestions (below) but hang on for feedback from others for any further fine tuning

Would suggest you start each paragraph with the same heading (and embolden it) you have in your list before then expanding the point (it helps things stand out for the assessor) e.g.

1) Amount demanded is a penalty not a genuine pre-estimate of loss.

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).


Re: ANPR - Do you know whether it was ANPR cameras mounted in fixed positions or was it perhaps a van with ANPR cameras mounted on it - often for the ones about no stopping zones it's a van capturing the images.

If it's was a van you might want to take a look at the ANPR point in this POPLA by OP marpol456

https://forums.moneysavingexpert.com/discussion/4941179

Point 8) regarding how long APCOA took to respond to your initial appeal to them can be deleted - POPLA won't care

eire13

Thanks for quick reply. Yes it was a van that took the photos I will have a look at that link and amend that point. Will re-do that point and post up tomorrow. I really hope I do win as I can't afford £80. :eek:

Thanks for help so far.

ColliesCarer

Don't worry - you'll be fine

Take a look at NEWBIES thread post #3 and follow the link for POPLA decisions - go to last page for most recent and work backwards looking for APCOA as the ppc.

How many can you find where APCOA won?

And if you want a laugh take a look at this case where APCOA paid the defendant £200 to allow them to drop the case :rotfl:

http://parking-prankster.blogspot.co.uk/2014/04/apcoa-case-struck-out.html

eire13

Hi,

Ok I have amended as suggested. Hope this looks better. Please could people give me ideas on if this is ok. Thanks.

POPLA Ref xxxxxxxxxxx
APCOA Parking PCN no xxxxxxxxxx

A notice to keeper was issued on 2nd March 2014 and received by me (the registered keeper of vehicle registration xxxxxxx) on 19th March 2014 for an alleged contravention of ‘02-Dropping off/Picking up outside of a designated parking area’. APCOA Parking issued a parking charge notice because the above vehicle was allegedly recorded on their automatic number plate recognition system. 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
8) ANPR Accuracy


1) ) Amount demanded is a penalty not a genuine pre-estimate of loss
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) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
If APOCA want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and they have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, the 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 2nd March 2014, and the notice to keeper was received 17 days later on 19th March 2014.

3) Not relevant Land under POFA 2012; no registered keeper liability
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) Creditor not identified
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) Misleading and unclear 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 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.'' The sign near where the driver stopped is also situated on the passenger side of the road on a standard right hand UK car and is situated around 6-8ft high on a pole, this makes it difficult for drivers to see or read from inside the car regardless of which side of the road the area is entered from.
As a POPLA Assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

6) Reasonable cause for requesting keeper details from DVLA
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) No landowner contract nor legal standing to form contracts or charge drivers
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.

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'.
This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if APCOA fail to address and provide the necessary evidence as requested in the points highlighted above. I therefore request that POPLA uphold my appeal and cancel this PCN.

BTW on my pc I have bolded and underlined the headings but this does not come through on the post. All comments welcome.

Coupon-mad

Yep - you will win!

eire13

Brilliant that sounds hopeful. Do I just need to it online will that be enough as my printer is broken at the moment. And do i send it in straight away or wait a while ? Thanks

Redx

login online and put in the first part including the bullet points precis

then write

see attachment for full appeal

then attach it as a word doc or pdf or wordpad file etc (the full appeal)

you will get an email back acknowledging it from london councils (popla)