APCOA Birmingham Airport

OBAone

Hello all,

Quick update.

I've just received a response to my appeal from APCOA this morning. Basically, they have rejected my appeal on the grounds that the PCN was issued in accordance to BPA's guidelines AND that my car wasn't parked entirely within the confines of the lay-by outside the hotel, therefore causing a potential obstruction to other airport traffic. So they have provided me a POPLA code.

As a result, after going through the POPLA appeals templates on here I have come up with the appeal letter below. Kindly help to check that it is fit for purpose.

Also, on the POPLA form, it says they prefer an appeal to be submitted via email, and also send me decision via email. Should I opt for email OR use the post?

Lastly, on the POPLA form itself, should I select "The parking charge (ticket) exceeded the appropriate amount" as my reason for appealing??? The other options are:

- The vehicle was not improperly parked
- The vehicle was stolen
- I am not liable for the parking charge

Thanks in advance.

POPLA Ref xxxxxxxxx
APCOA Parking. PCN number xxxxxxxx

A notice to keeper was issued to me (The Registered Keeper of vehicle reg xxxxxxxx) for an alleged contravention of 02-Dropping/Picking up outside of a designated parking area on 03-June-2014. APCOA Parking Limited issued a Parking Charge Notice because the above vehicle was allegedly recorded on their automatic number plate recognition (ANPR) system.

My Appeal:

1). The charge is not a genuine pre-estimate of loss incurred by APCOA Parking Limited and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the Parking Charge Notice to be a penalty because APCOA Parking Limited 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). The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 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 Parking Limited 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). 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 Parking Limited 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 03 June 2014, and the notice to keeper was received 17 days later on 20 June 2014.

4). 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.

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 Limited any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, APCOA Parking Limited’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 Limited to demonstrate their legal ownership of the land to POPLA.

6). I contend that APCOA Parking Limited 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.

7). 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 Limited to prove otherwise so I require that APCOA Parking Limited produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it.

8). 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 Limited and the owner/occupier, containing nothing that APCOA Parking Limited can lawfully use in their own name as a mere agent, that could impact on a third party customer.

9) 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.

Please note the above points and observations were highlighted to APCOA Parking Limited on my appeal letter dated 20th June 2014.

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

Yours faithfully,

Umkomaas

Good start.

1. You need to put an emboldened header over each appeal section/paragraph and also use these headers as a bullet point index list at the opening of your appeal. This way the the adjudicator can quickly scan and zoom in and move to the key points of your appeal.

2. Drop the VCS -v- HMRC as this is not appropriate to your case; in fact VCS appealed and to a degree won.

3. Where you have asked that a copy of the contract is produced you are not being sufficiently specific - you need them to produced 'a totally unredacted and contemporaneous contract', otherwise they will send one with large sections blocked out and the date of which might be unrelated to your 'parking' event.

HTH

Coupon-mad

If I had a pound for every time the question is asked and answered: 'tick 3 out of 4 appeal boxes, just not the stolen car one of course' I would be quids in!

I would move point #9 up to become point #3 as it's a winning point for a keeper and should be higher.

And this bit (below) is in the wrong place, so get rid of point #4 an amalgamate this below into the start of point #2, before you even mention the lack of the word 'creditor':

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 03 June 2014, and the notice to keeper was received 17 days later on 20 June 2014. 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. In addition this 'either/or' contravention fails to comply with paragraph 9 (2)(c) of schedule 4 of the Protection of Freedoms Act 2012.

Further, the notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor...

OBAone

Many thanks to Umkomaas and Coupon-mad for your help. I have now made the changes. Below is the updated appeal.

Please advise - should I send the appeal via email or do it by post?

Thanks.

POPLA Ref xxxxxxxx
APCOA Parking. PCN number xxxxxxxx

A notice to keeper was issued to me (The Registered Keeper of vehicle reg xxxxxxx) for an alleged contravention of BA01 – Failing to park in a designated parking area on
03 June 2014. APCOA Parking Limited issued a Parking Charge Notice because the above vehicle was allegedly recorded on their automatic number plate recognition (ANPR) system.

My Appeal:

1) The charge is not a genuine pre-estimate of loss.

2) The notice to keeper received late; and not compliant with BPA code and POFA 2012.

3) Airport land is not 'relevant land'.

4) No evidence that APCOA Parking Limited has legal ownership of the airport land.

5) APCOA Parking Limited are only an agent working for the owner.

6) No evidence that APCOA Parking Limited has a contract with the landowner/occupier that entitles them to levy these charges.

7) Lack of ownership or assignment of title or interest in the land.

8) No evidence APCOA complied with BPA Code requirements for ANPR issued tickets.

1) The charge is not a genuine pre-estimate of loss:

The charge is not a genuine pre-estimate of loss incurred by APCOA Parking Limited and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the Parking Charge Notice to be a penalty because APCOA Parking Limited 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) The notice to keeper received late; and not compliant with BPA code and POFA 2012:

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 03 June 2014, and the notice to keeper was received 17 days later on 20 June 2014.

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 Parking Charge Notice says 'either/or' of two different contraventions as a generic catch-all. This does not comply with the BPA code point 20.14. In addition this 'either/or' contravention fails to comply with paragraph 9 (2)(c) of schedule 4 of the Protection of Freedom Act 2012.

Further, the notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 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 Parking Limited has 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':

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) No evidence that APCOA Parking Limited has legal ownership of the airport land:

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 Limited any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, APCOA Parking Limited’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 Limited to demonstrate their legal ownership of the land to POPLA.

5) APCOA Parking Limited are only an agent working for the owner:

I contend that APCOA Parking Limited 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.

6) No evidence that APCOA Parking Limited has a contract with the landowner/occupier that entitles them to levy these charges:

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 Limited to prove otherwise so I require that APCOA Parking Limited produce a copy of a totally unredacted and contemporaneous contract with the owner/occupier and that the POPLA adjudicator scrutinises it.

7) Lack of ownership or assignment of title or interest in the land:

Even if an unredacted and contemporaneous contract is produced and mentions Parking Charge Notices (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 Limited and the owner/occupier, containing nothing that APCOA Parking Limited can lawfully use in their own name as a mere agent, that could impact on a third party customer.

8) No evidence APCOA complied with BPA Code requirements for ANPR issued tickets:

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 Parking Limited have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.

Please note the above points and observations were highlighted to APCOA Parking Limited on my appeal letter dated 20th June 2014.

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

Yours faithfully,

Umkomaas

Good to go - and a 'winner'.

OBAone

Umkomaas wrote: »

Good to go - and a 'winner'.

Great, thanks. Will send via email.

Redx

OBAone wrote: »

Great, thanks. Will send via email.

nope , POPLA dont accept email appeals

go to their website and file it using the 10 digit code, then attach your appeal and any evidence

OBAone

Redx wrote: »

nope , POPLA dont accept email appeals

go to their website and file it using the 10 digit code, then attach your appeal and any evidence

It says at the top of the form to send it (and any evidence) to [EMAIL="appeals@popla.org.uk"]appeals@popla.org.uk[/EMAIL]. Probably a new thing. I've sent it and got a 'confirmation of receipt' email.

I've uploaded the notice here: http://tinypic.com/r/k1dsw3/8

Cheers!

Coupon-mad

Interesting they now accept email appeals - that is new!

spjh

Having received a similar notice as OBAone, is there any view on appeal letter OBAone sent to get immediate cancellation from APCOA. our incident was similar drop off by IBIS hotel, car was not parked or left unattended and was stationery for approx 90 seconds. Previously we have dropped people who have had work experience at the hotel and never had an issue, which is why we saw the place as ideal for drop and go.