APCOA Luton - POPLA Appeal - proof reading/advice needed

BestWestern

Good Morning All,

About two weeks ago, I received a parking charge notice from APCOA stating that the driver of a vehicle, that I am a registered keeper of, was allegedly "dropping off/picking up outside of a designated parking area". I wrote a soft appeal but now received a second letter from APCOA rejecting my appeal.

I am planning to appeal to POPLA now and managed to compose a letter based on previous posts. However, I would be extremely grateful, if any of experienced PCN-busters could have a look and advise whether it is ok to send it to POPLA.

Thank you in advance!

BW

POPLA Ref xxxxx
APCOA Parking PCN no xxxxx


Dear POPLA Assessor,

I am writing to you as the registered keeper of vehicle (registration xxxxx). On xx March 2014 APCOA issued a notice number xxxx which was received by me, the registered keeper, on xx March 2014. APCOA Parking issued the parking notice for an alleged contravention of ‘02-Dropping off/Picking up outside of a designated parking area’ which was allegedly recorded on their automatic number plate recognition system.

As the registered keeper of the above vehicle, I am appealing against this parking charge notice on the grounds stated below:

1) The notice was issued out of time
2) Amount demanded is a penalty and not a genuine pre-estimate of loss
3) Not relevant Land as defined under POFA 2012 and no registered keeper liability
4) No landowner contract nor legal standing to form contracts or charge the driver or keeper
5) No contract with driver
6) Misleading and unclear signage
7) Creditor not identified
8) Reasonable cause for requesting keeper details from DVLA
9) Non-compliant ANPR 'hidden camera van' at the 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) for an alleged contravention that took place on (date) . This is outside the 14 days allowed for notification to the keeper as set out in Schedule 4 of POFA 2012.

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 incurred by APCOA Parking Ltd 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 and 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 Luton Airport is designated
as an airport by the Secretary of State and therefore roads within the airport are subject to airport bylaws and therefore 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 the driver or keeper
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 16/05/2012 (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, 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”. APCOA 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 clearly beyond credibility.

7) 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.

8) Reasonable cause for requesting keeper details from DVLA
The BPA code of practice 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 charge notice does not provide this information which does not comply with the BPA code point 20.14.

9) Non-compliant ANPR 'hidden camera van' at the 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 set out 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 a road and not
a car park. 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.


This concludes my appeal. I respectfully request that POPLA upholds my appeal and dismisses the parking charge if APCOA fails to address and provide the necessary evidence as requested in the points highlighted above.

Custard_Pie

You have the magic wording of no genuine pre-estimate of loss, hence winner winner chicken dinner. They probably will drop the claim now.