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Luton Airport
Johnnyc
Posts: 5 Forumite
Hello.
I have received a pcn £80 reduced to £48 from APCOA for contravention 02 dropping off/picking up out side designated area.
I read through loads of previous threads and used the template from the newbies section.
I received a letter from APCOA stating my appeal has not been successful.
There argument was that there notice was delivered within the time allowed. Which is fair enough. And I tried the GPEOL route and they stated there charge is reasonable and fair and approved by the land owner as it is not exceeding £80.
So I was going to just give up and pay online however when I logged on with my ticket number and registration plate it came up with no data found.
So with this in mind I thought I could give it another go with POPLA. So my question is can any one help me draft a letter to POPLA.
I have looked for other peoples examples and the best i could find was this one which I tweaked for my self.
PCN xxxx
POPLA No: xxxxxx
Dear POPLA,
A notice to keeper was issued to me for an alleged contravention within the Luton Airport site, recorded on APCOA's ANPR system. As registered keeper, I am not liable for this PCN and so I wish to appeal on the grounds numbered 1 - 5 as outlined below:
1) The Charge is not a genuine pre-estimate of loss
APCOA’s letter of rejection against my appeal, and their signage (not seen by the driver at the time, see point 2 below) confirm that this charge represents liquidated damages for breach. It is apparent that the purpose of the charge at this extravagantly high level is predominantly as a deterrent.
APCOA cannot demonstrate any initial loss caused by the alleged event, so there can be no consequential damages flowing from the incident. APCOA would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all. Nor is the charge 'commercially justified'. If APCOA cites 'ParkingEye v Beavis & Wardley' it's irrelevant. Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014: ''In each case that I have seen from the higher courts...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach...It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss...nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
I fully expect APCOA will send POPLA a generic statement showing duplicated layers of staff time, including unnecessary checks and balances. It will no doubt follow the now rather well-trodden path of trotting out the unsubstantiated and incredible assertion that around three hours of Management time 'double checking' the work of others, goes into each and every PCN (whether appealed or not). Where a large percentage of the 'GPEOL calculation' comprises staff costs, they must be able to justify those heads as relating to a typical PCN. And yet only 2% of PCNs get to POPLA stage, so clearly even if a Manager did waste half a day double checking those rare cases which go to POPLA, only 2% of those man-hours could be applied in advance as a GPEOL. Their calculation cannot, in the interests of good faith and open dealings with consumers, include the entire count of man-hours allegedly spent on the odd rare case appealed to POPLA because those extravagant layers of staff costs cannot be in the reasonable contemplation of the Operator at the time of issuing a PCN.
Like other operators, it is in the public domain that APCOA have recently jumped on the bandwagon and manufactured a newly re-written ‘loss’ statement. This is surprisingly similar to that used by PPS (after PPS had won a couple of anomalous POPLA decisions). This allegedly plagiarised calculation is now common to several operators and POPLA has seen it and dismissed it before. A generic 'model loss statement' cannot possibly show any regard to calculating before the event, a genuine pre-estimate of the likely loss which might typically flow from a parking event. I contend APCOA's calculation is merely a conveniently-totalled sum of actual loss suffered, made afterwards, rather than a genuine pre-estimate of loss. Earlier this year and during the whole of the 2 years since POPLA started, APCOA have used a completely different template of 'GPEOL calculation' as evidence, showing the intention of their charges at Airports as calculated in advance. So, a shiny 'new version' written this Summer cannot replace the well-documented (and known to POPLA) old version purely to try to win POPLA appeals, as it is without a doubt, not genuinely based on any calculation made in advance, when meeting with the Airport owners to set the charges for this contravention before APCOA started to charge and operate at this Airport.
As such, POPLA should I hope, see through it just as Ricky Powell did in 6861754004 (re PPS, the originators of the generic calculation APCOA now use):
''I find that the ‘appeal writing’ loss asserted is duplicated in two heads of loss. The ‘Appeals staff’ appeals writing costs are included in the sum for £9.51. However, there are further appeal writing costs included in the ‘Management’ costs, which total £71.65. It has not been explained how the individual heads of loss included under the heading ‘Management’ are calculated. It is also impossible to determine what contribution the appeal writing costs contribute to the total of £71.65. Therefore, I cannot find that the total costs for ‘Management’ are substantiated and so must disregard them from the total genuine pre-estimate of loss...I find that the parking charge is not enforceable in this case. '' (Ricky Powell, Assessor, August 2014).
I contend that APCOA's calculation (even if it is a more credible effort than those recently presented) must fail as it has been re-written recently and is not a genuine PRE-estimate. In fact it would be a 'post-estimate' after the event, of figures designed to match the charge. As such, any re-write by APCOA would be disingenuous and not acceptable, according to the words of POPLA Lead Adjudicator, Mr Greenslade: “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."
I put APCOA to strict proof of the date when the GPEOL was discussed and decided for this contravention at this site. This must include documentary evidence of a meeting with their clients at the Airport and/or contemporaneous notes or emails or other evidence which shows how/when this PCN sum was decided in advance, specifically for this part of the Airport, detailing genuinely likely losses caused by this alleged contravention.
2) APCOA have failed to establish keeper liability
APCOA have failed to fulfil the requirements necessary under statute (the POFA 2012) to allow them to attempt recovery of any charge from the keeper.
Sites designated as Airports by the Secretary of State are subject to statutory control in the form of byelaws. POFA 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050. The driver has not been identified, therefore as registered keeper I cannot lawfully be held liable for this charge. If APCOA argue otherwise then they must produce the byelaws and maps to show that this part of the Airport is somehow exempt from statutory control. The onus falls upon APCOA to demonstrate this and I put them to strict proof on this point.
However, even if this Operator counters the above point, there is still no keeper liability because the notice to keeper (NTK) is not valid. It fails to meet the requirements of paragraph 9 of Schedule 4 of the POFA 2012. The liability is not based in the law of contract but is created by the statute and the wording is prescriptive and mandatory.
The NTK issued by APCOA appears not to comply with the Act as follows:
(A) Paragraph 2(a) requires APCOA to specify the 'period of parking',. A layman's interpretation means this requires a stated 'time period' during which the car was evidenced to be 'parked'. A 'period of parking' is not evidenced by a photo of a single moment in time when unmanned ANPR cameras captured the presence of a vehicle registration number on a road.
(B) Paragraphs 2(b), 2(c) and 2(d) require a NTK to “inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full” and to ''describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable'' and to''specify the total amount of those parking charges that are unpaid, as at a time which is—(i)specified in the notice; and (ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper''. I see no'time' specified which falls between the date/time of the ANPR photo and the issue date of the NTK. Further, nothing is specified about any charge which could be described as 'unpaid' by the driver, beforethe day the NTK was issued invoicing me for another sum (which, whilst conveniently also described as a 'parking charge' is not capable of being 'unpaid parking charges' prior to the invoice). If there were no 'unpaid' parking charges then the NTK must still specify those as zero, to comply with 2(d).
(C) Paragraph (2)(h) requires an operator to "identify" the creditor. A layman's interpretation means this requires words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made, which could be the operator but is likely to be the landowner or their client, in view of the court-exposed failings of APCOA's known contracts as detailed in point 4 below.
The fact that some or all of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. As the NTK is not explicit as regards mandatory wording in the Act, it is not valid.
In addition, in my case the NTK was not received within the 'relevant period' either - a fact which which APCOA were made aware of - yet they replied "Please note as the registered keeper of this vehicle, you are liable for this ticket, unless details of the driver are provided". This is incorrect and misleading, and a serious breach of the BPA CoP for APCOA to say that keeper liability applies when they know that it does not.
3) Unclear and unreadable signs; lack of repeater signs for a 'no stopping zone'
If APCOA intend this road to treated by drivers as a clearway then the signs and lines must be compliant with the TRSGD2002 to avoid confusion. Any repeater signs in this area do not face the oncoming traffic, are obscured in places and the words are too small to read from a car. The circumstances which may give rise to a PCN cannot be read and understood without stopping. In breach of Appendix B of the BPA Code of Practice and despite the words of POPLA Lead Adjudicator, Mr Greenslade in the 'No Stopping Zones' section of the POPLA Report 2013, there is a lack of regular repeater signs and nothing about the risk/amount of a PCN can be read by a driver in moving traffic, particularly late in the day or in the early hours or even in adverse weather, because the signs lack prominence at this busy site. The number of recorded cases in the public domain with drivers having no idea that this road is apparently meant to be a clearway, shows that this site is a cash-cow for APCOA and they have had no reason or incentive to make the restriction clear.
4) Lack of standing/authority from landowner
BPA CoP paragraphs 7.1 & 7.2 dictate mandatory contract wording. APCOA has no status to legally enforce this charge in their own right because there is no assignment of rights to pursue PCNs in the courts. They do not own this land and have a bare licence to put signs & cameras up and 'ticket' vehicles, merely acting as an agent on behalf of the Airport. No evidence has been supplied showing that APCOA are entitled to pursue these charges in the courts in their own right.
I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. APCOA have previously failed in several attempted small claims in 2014 when it was exposed that only their principal had the right to start court proceedings. I say this is likely to be typical of APCOA contracts and therefore they are a commercial agent with no standing or authority which can impact directly to form any contract with a motorist. If APCOA produce a redacted contract or basic site agreement/witness statement saying they 'can issue PCNs' this will not rebut my appeal point because a relevant clause showing the landowner to be the only party with rights to sue may well be omitted.
5) ANPR photos show no 'parking' event and the camera system breaches both the ICO registration and the principle of transparency in the UTCCRs
As I am merely the registered keeper, I have no evidence to show me that my car was involved in any 'period of parking' at all. Photos of a vehicle clearly not in a car park but on a road, with the images zoomed in on a number-plate and taken by an unmanned ANPR camera, are not parking photographs. APCOA cannot show beyond the balance of probabilities that the car was not involved in non-parking related activity - e.g. queuing at a junction or adjusting a seatbelt or slowing briefly to read any signs to locate the car park or exit. All of which are acceptable features of driving carefully along an unfamiliar Airport roadway, with the distractions of pedestrians, other signs, bright lights and flags along parts of the road; even if a vehicle slowed or stopped momentarily then this is not parking. I put APCOA to strict proof of an actual period of parking, not proven merely by remote photos of a vehicle on a road.
In addition, the BPA CoP contains the following obligation in paragraph 21:
''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'; I have seen no evidence of signs which inform a driver about ANPR technology in use here, nor what the system is used for. Even if there is a sign with a picture of a camera - and I have no idea due to the lack of information from this operator - this would simply suggest CCTV cameras are on site for safety or crime detection by the Local Authority or Police, which would not be an unreasonable assumption in an Airport. A sign with a camera picture would not be sufficient under the Operator's ICO registration, to meet their duty to inform a driver about the circumstances under which the ANPR images and DVLA data is actually being collected and stored and by whom and for what purpose.
Further, the UTCCRs 1999 (statutory regulations based upon mandatory EU Directives) create a duty upon parties offering contract terms to consumers that these must be fair and transparent and set out clearly in plain English. Terms on a sign - which by definition is a contract not negotiated in advance and where the consumer has had no opportunity to influence the terms or have any bargaining power - must ensure that the rights and obligations of both parties are made clear. A hidden ANPR camera or CCTV car trained on the road, with no clear signs informing drivers about the operation or identifying the private firm which is using the data and for what purpose, is clearly unfair and lacks transparency.
UTCCRs Group 18(a): unfair financial burdens, states:
''Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.''
9.2 ''...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
UTCCRs Test of fairness:
''A term is unfair if...it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of the consumer, contrary to the requirement of good faith. Unfair terms are not enforceable against the consumer.''
I therefore respectfully request that my appeal is upheld.
Any suggestions or changes i need to make would be much appreciated. Or if you think I need to delete a few points to make it more simple.
Thanks in advance.
I have received a pcn £80 reduced to £48 from APCOA for contravention 02 dropping off/picking up out side designated area.
I read through loads of previous threads and used the template from the newbies section.
I received a letter from APCOA stating my appeal has not been successful.
There argument was that there notice was delivered within the time allowed. Which is fair enough. And I tried the GPEOL route and they stated there charge is reasonable and fair and approved by the land owner as it is not exceeding £80.
So I was going to just give up and pay online however when I logged on with my ticket number and registration plate it came up with no data found.
So with this in mind I thought I could give it another go with POPLA. So my question is can any one help me draft a letter to POPLA.
I have looked for other peoples examples and the best i could find was this one which I tweaked for my self.
PCN xxxx
POPLA No: xxxxxx
Dear POPLA,
A notice to keeper was issued to me for an alleged contravention within the Luton Airport site, recorded on APCOA's ANPR system. As registered keeper, I am not liable for this PCN and so I wish to appeal on the grounds numbered 1 - 5 as outlined below:
1) The Charge is not a genuine pre-estimate of loss
APCOA’s letter of rejection against my appeal, and their signage (not seen by the driver at the time, see point 2 below) confirm that this charge represents liquidated damages for breach. It is apparent that the purpose of the charge at this extravagantly high level is predominantly as a deterrent.
APCOA cannot demonstrate any initial loss caused by the alleged event, so there can be no consequential damages flowing from the incident. APCOA would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all. Nor is the charge 'commercially justified'. If APCOA cites 'ParkingEye v Beavis & Wardley' it's irrelevant. Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014: ''In each case that I have seen from the higher courts...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach...It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss...nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
I fully expect APCOA will send POPLA a generic statement showing duplicated layers of staff time, including unnecessary checks and balances. It will no doubt follow the now rather well-trodden path of trotting out the unsubstantiated and incredible assertion that around three hours of Management time 'double checking' the work of others, goes into each and every PCN (whether appealed or not). Where a large percentage of the 'GPEOL calculation' comprises staff costs, they must be able to justify those heads as relating to a typical PCN. And yet only 2% of PCNs get to POPLA stage, so clearly even if a Manager did waste half a day double checking those rare cases which go to POPLA, only 2% of those man-hours could be applied in advance as a GPEOL. Their calculation cannot, in the interests of good faith and open dealings with consumers, include the entire count of man-hours allegedly spent on the odd rare case appealed to POPLA because those extravagant layers of staff costs cannot be in the reasonable contemplation of the Operator at the time of issuing a PCN.
Like other operators, it is in the public domain that APCOA have recently jumped on the bandwagon and manufactured a newly re-written ‘loss’ statement. This is surprisingly similar to that used by PPS (after PPS had won a couple of anomalous POPLA decisions). This allegedly plagiarised calculation is now common to several operators and POPLA has seen it and dismissed it before. A generic 'model loss statement' cannot possibly show any regard to calculating before the event, a genuine pre-estimate of the likely loss which might typically flow from a parking event. I contend APCOA's calculation is merely a conveniently-totalled sum of actual loss suffered, made afterwards, rather than a genuine pre-estimate of loss. Earlier this year and during the whole of the 2 years since POPLA started, APCOA have used a completely different template of 'GPEOL calculation' as evidence, showing the intention of their charges at Airports as calculated in advance. So, a shiny 'new version' written this Summer cannot replace the well-documented (and known to POPLA) old version purely to try to win POPLA appeals, as it is without a doubt, not genuinely based on any calculation made in advance, when meeting with the Airport owners to set the charges for this contravention before APCOA started to charge and operate at this Airport.
As such, POPLA should I hope, see through it just as Ricky Powell did in 6861754004 (re PPS, the originators of the generic calculation APCOA now use):
''I find that the ‘appeal writing’ loss asserted is duplicated in two heads of loss. The ‘Appeals staff’ appeals writing costs are included in the sum for £9.51. However, there are further appeal writing costs included in the ‘Management’ costs, which total £71.65. It has not been explained how the individual heads of loss included under the heading ‘Management’ are calculated. It is also impossible to determine what contribution the appeal writing costs contribute to the total of £71.65. Therefore, I cannot find that the total costs for ‘Management’ are substantiated and so must disregard them from the total genuine pre-estimate of loss...I find that the parking charge is not enforceable in this case. '' (Ricky Powell, Assessor, August 2014).
I contend that APCOA's calculation (even if it is a more credible effort than those recently presented) must fail as it has been re-written recently and is not a genuine PRE-estimate. In fact it would be a 'post-estimate' after the event, of figures designed to match the charge. As such, any re-write by APCOA would be disingenuous and not acceptable, according to the words of POPLA Lead Adjudicator, Mr Greenslade: “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."
I put APCOA to strict proof of the date when the GPEOL was discussed and decided for this contravention at this site. This must include documentary evidence of a meeting with their clients at the Airport and/or contemporaneous notes or emails or other evidence which shows how/when this PCN sum was decided in advance, specifically for this part of the Airport, detailing genuinely likely losses caused by this alleged contravention.
2) APCOA have failed to establish keeper liability
APCOA have failed to fulfil the requirements necessary under statute (the POFA 2012) to allow them to attempt recovery of any charge from the keeper.
Sites designated as Airports by the Secretary of State are subject to statutory control in the form of byelaws. POFA 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050. The driver has not been identified, therefore as registered keeper I cannot lawfully be held liable for this charge. If APCOA argue otherwise then they must produce the byelaws and maps to show that this part of the Airport is somehow exempt from statutory control. The onus falls upon APCOA to demonstrate this and I put them to strict proof on this point.
However, even if this Operator counters the above point, there is still no keeper liability because the notice to keeper (NTK) is not valid. It fails to meet the requirements of paragraph 9 of Schedule 4 of the POFA 2012. The liability is not based in the law of contract but is created by the statute and the wording is prescriptive and mandatory.
The NTK issued by APCOA appears not to comply with the Act as follows:
(A) Paragraph 2(a) requires APCOA to specify the 'period of parking',. A layman's interpretation means this requires a stated 'time period' during which the car was evidenced to be 'parked'. A 'period of parking' is not evidenced by a photo of a single moment in time when unmanned ANPR cameras captured the presence of a vehicle registration number on a road.
(B) Paragraphs 2(b), 2(c) and 2(d) require a NTK to “inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full” and to ''describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable'' and to''specify the total amount of those parking charges that are unpaid, as at a time which is—(i)specified in the notice; and (ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper''. I see no'time' specified which falls between the date/time of the ANPR photo and the issue date of the NTK. Further, nothing is specified about any charge which could be described as 'unpaid' by the driver, beforethe day the NTK was issued invoicing me for another sum (which, whilst conveniently also described as a 'parking charge' is not capable of being 'unpaid parking charges' prior to the invoice). If there were no 'unpaid' parking charges then the NTK must still specify those as zero, to comply with 2(d).
(C) Paragraph (2)(h) requires an operator to "identify" the creditor. A layman's interpretation means this requires words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made, which could be the operator but is likely to be the landowner or their client, in view of the court-exposed failings of APCOA's known contracts as detailed in point 4 below.
The fact that some or all of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. As the NTK is not explicit as regards mandatory wording in the Act, it is not valid.
In addition, in my case the NTK was not received within the 'relevant period' either - a fact which which APCOA were made aware of - yet they replied "Please note as the registered keeper of this vehicle, you are liable for this ticket, unless details of the driver are provided". This is incorrect and misleading, and a serious breach of the BPA CoP for APCOA to say that keeper liability applies when they know that it does not.
3) Unclear and unreadable signs; lack of repeater signs for a 'no stopping zone'
If APCOA intend this road to treated by drivers as a clearway then the signs and lines must be compliant with the TRSGD2002 to avoid confusion. Any repeater signs in this area do not face the oncoming traffic, are obscured in places and the words are too small to read from a car. The circumstances which may give rise to a PCN cannot be read and understood without stopping. In breach of Appendix B of the BPA Code of Practice and despite the words of POPLA Lead Adjudicator, Mr Greenslade in the 'No Stopping Zones' section of the POPLA Report 2013, there is a lack of regular repeater signs and nothing about the risk/amount of a PCN can be read by a driver in moving traffic, particularly late in the day or in the early hours or even in adverse weather, because the signs lack prominence at this busy site. The number of recorded cases in the public domain with drivers having no idea that this road is apparently meant to be a clearway, shows that this site is a cash-cow for APCOA and they have had no reason or incentive to make the restriction clear.
4) Lack of standing/authority from landowner
BPA CoP paragraphs 7.1 & 7.2 dictate mandatory contract wording. APCOA has no status to legally enforce this charge in their own right because there is no assignment of rights to pursue PCNs in the courts. They do not own this land and have a bare licence to put signs & cameras up and 'ticket' vehicles, merely acting as an agent on behalf of the Airport. No evidence has been supplied showing that APCOA are entitled to pursue these charges in the courts in their own right.
I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. APCOA have previously failed in several attempted small claims in 2014 when it was exposed that only their principal had the right to start court proceedings. I say this is likely to be typical of APCOA contracts and therefore they are a commercial agent with no standing or authority which can impact directly to form any contract with a motorist. If APCOA produce a redacted contract or basic site agreement/witness statement saying they 'can issue PCNs' this will not rebut my appeal point because a relevant clause showing the landowner to be the only party with rights to sue may well be omitted.
5) ANPR photos show no 'parking' event and the camera system breaches both the ICO registration and the principle of transparency in the UTCCRs
As I am merely the registered keeper, I have no evidence to show me that my car was involved in any 'period of parking' at all. Photos of a vehicle clearly not in a car park but on a road, with the images zoomed in on a number-plate and taken by an unmanned ANPR camera, are not parking photographs. APCOA cannot show beyond the balance of probabilities that the car was not involved in non-parking related activity - e.g. queuing at a junction or adjusting a seatbelt or slowing briefly to read any signs to locate the car park or exit. All of which are acceptable features of driving carefully along an unfamiliar Airport roadway, with the distractions of pedestrians, other signs, bright lights and flags along parts of the road; even if a vehicle slowed or stopped momentarily then this is not parking. I put APCOA to strict proof of an actual period of parking, not proven merely by remote photos of a vehicle on a road.
In addition, the BPA CoP contains the following obligation in paragraph 21:
''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'; I have seen no evidence of signs which inform a driver about ANPR technology in use here, nor what the system is used for. Even if there is a sign with a picture of a camera - and I have no idea due to the lack of information from this operator - this would simply suggest CCTV cameras are on site for safety or crime detection by the Local Authority or Police, which would not be an unreasonable assumption in an Airport. A sign with a camera picture would not be sufficient under the Operator's ICO registration, to meet their duty to inform a driver about the circumstances under which the ANPR images and DVLA data is actually being collected and stored and by whom and for what purpose.
Further, the UTCCRs 1999 (statutory regulations based upon mandatory EU Directives) create a duty upon parties offering contract terms to consumers that these must be fair and transparent and set out clearly in plain English. Terms on a sign - which by definition is a contract not negotiated in advance and where the consumer has had no opportunity to influence the terms or have any bargaining power - must ensure that the rights and obligations of both parties are made clear. A hidden ANPR camera or CCTV car trained on the road, with no clear signs informing drivers about the operation or identifying the private firm which is using the data and for what purpose, is clearly unfair and lacks transparency.
UTCCRs Group 18(a): unfair financial burdens, states:
''Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.''
9.2 ''...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
UTCCRs Test of fairness:
''A term is unfair if...it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of the consumer, contrary to the requirement of good faith. Unfair terms are not enforceable against the consumer.''
I therefore respectfully request that my appeal is upheld.
Any suggestions or changes i need to make would be much appreciated. Or if you think I need to delete a few points to make it more simple.
Thanks in advance.
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Comments
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I can post a copy of my original letter to apcoa if needed.0
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I was returning from Nice airport a couple of weeks ago and watched with incredulity as a car drew up at the roundabout just by the bus stops and a couple of guys got out with their bags.
Sitting some 10 yards away was a Toyota IQ with a camera on a stalk capturing everything. I am just waiting for the driver of the car to come on here asking for advice !
May I also say that your appeal refers to Beavis and Mr Beavis going to the Court of Appeal. He did. He lost, although he is now planning to go to the supreme court. My advice, therefore, is to remove all reference to Beavis until you get to see the PPC response to your appeal and then get the up to date info on the state of play re Beavis at that time. As it stands, your appeal point acts against, not for, you.
Have you looked at the POPLA DECISIONS sticky thread for any winning appeals against ACPOA and Luton airport?0 -
I do not understand, what has Beavis got to do with it?You never know how far you can go until you go too far.0
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POFA 2012 cannot apply & thus there is no RK liability as this is a 'fine' for "contravention 02 dropping off/picking up out side designated area" not an unpaid parking charge.0
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If they drag this to POPLA it should be an easy win, if you follow the advice.
Also complain to the airport about their agents actions and tell the airport you are holding them responsible, and will invoice the airport for your time / expenses.
keep a log of how much time you are spending dealing with this and then invoice the airport/ whoever took on APCOA.From the Plain Language Commission:
"The BPA has surely become one of the most socially dangerous organisations in the UK"0 -
Hello Thank you for all your replies.
Having reviewed the popla decision thread this template this was the most recent one i could find that matched my circumstance.
I will re edit my letter and delete any reference to BEAVIS.
NIgellBB- I'm trying to get my head around POFA. I understand from my rejection letter that POFA 2012 does not apply. Does this mean I would be able to appeal based on not being liable as register keeper .? I have not admitted to being the driver as advised from this forum.
Half_way.- Thank you for your support. I will re draft my letter. Would you able to advise me of the main point that I should include in my letter.
I'm reading as much as I can however i'm failing to see where I could win.
Thank you again.0 -
Hello I have trawled through more templates from the popla decision thread and have come up with this template which I feel would be more suited.
Can any one please have a look and comment again as to whether or not it would work.
Thank you .
POPLA Ref xxxxx
APCOA Parking.PCN no xxxxxxx
A notice to keeper was issued to me (The Registered Keeper of vehicle reg XXXXXXX) for an alleged contravention of 02-Dropping/Picking up outside of a designated parking area on xx-May-2015. APCOA Parking issued a parking charge notice because the above vehicle was allegedly recorded on their automatic number plate recognition system.
My Appeal.
1). 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 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.
2). 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).
3). 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.
4). 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).
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.
6). I contend that APCOA Parking Ltd 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 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.
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 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.
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.
This seems better than my first draft. Let me know what you think
Thanks0 -
enfield_freddy wrote: »correct , so how can this charge be adjudicated on by PARKING on PRIVATE land
must be some mistake
Maybe - but if there is a chance that POPLA can award an appeal to the motorist and it costs the PPC £27 and it is a pre-court step, then don't look a gift horse in the mouth. :beer:0 -
Provided you have not admitted to being the driver in your appeal to APCOA a much shorter version would be:--
PCN xxxx
POPLA No: xxxxxx
Dear POPLA,
A notice to keeper was issued to me for an alleged contravention within the Luton Airport site, recorded on APCOA's ANPR system. As registered keeper, I am not liable for this PCN as APCOA's claim is against the driver and no claim of keeper liability has been nor can be made.0
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