Staff PCN, Royal Stoke (UHNM) - APCOA

Coj77

Hi, great forum and wealth of information regards to dealing with PCNs, thank you.

During early 2016 3 PCNs were received on 3 separate occasions for parking in an undesignated area. Particularly disappointing as a member of staff at Royal Stoke paying £21 a month for the privilege of parking on a site where they obviously issue more permits than clear parking bays available.

I've followed the guidance available on the forum and after receiving the 3 subsequent NTK I replied in kind to each with the following;

Dear Sirs,

Re: PCN No. XXXXXXXXXXX

I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.

I believe that the signs were not seen/are ambiguous and the terms unclear to drivers before they park. Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as I believe the driver may well be eligible for cancellation.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,


As expected I have now received correspondence of unsuccessful appeal based on contravention of the terms and conditions of the car park, though I can honestly say I've never seen the signage to qualify this. Oddly, only 2 of the appeals have been rejected at this stage but may be the third will arrive in the post in the coming days. All timeframes appear to have been adhered to thus far.

The letter also clearly refers to me having clearly parked in an undesignated area even though no liability has been provided, only me as registered keeper. Not sure if this is relevant?

I propose to appeal to POPLA on the basis of the below and would appreciate feedback/additions/amendments;

POPLA Ref xxxxxxxxxxx
APCOA Parking PCN no xxxxxxxxxx

A notice to keeper was issued on XXXXXX and received by me (the registered keeper of vehicle registration xxxxxxx) on XXXXXX for an alleged contravention of ‘01-Failing to park in a designated parking area’. 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) Creditor not identified
3) Misleading and unclear signage
4) Reasonable cause for requesting keeper details from DVLA
5) No landowner contract nor legal standing to form contracts or charge drivers

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) 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.

3) The alleged contravention, according to APCOA, is because “you clearly parked in an undesignated area, not in a bay.......as stated on the parking signs at the entrance and around the sites”. However the signage within the staff permit areas is not clear, if at all visible to users of the multi-storey car park.

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 does not provide this information; 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 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.

I therefore request that POPLA uphold my appeal and cancel this PCN.

Thanks in anticipation for help

System

Take out 1 and 5

With regards to 1 - it is a penalty and has been designed that way to enforce the legitimate interests of the Trust

With regards to 5 there is a secondary contract with APCOA that does not rely on possessory rights, they belong to the Trust. You get the secondary contract by virtue of making a promise to keep to the rules.

So check the signs for visibility, content and coherence as these are the basis of the secondary contract with APCOA.

Coj77

Thanks.

I believe the signage to be very poor if not none existent so obviously forms the basis of the appeal. However, should I be concerned there don't appear to be many other points to pick up on?

I can't locate any success stories of similar scenarios, not feeling overly confident at present.

System

Particularly disappointing as a member of staff at Royal Stoke paying £21 a month for the privilege of parking on a site where they obviously issue more permits than clear parking bays available.

Signs may also be irrelevant as the secondary contract is linked to the terms of the permit. So what did you sign up for when you started paying the fee. Have you broken those rules and do they match the signs? If there is a conflict between the permit rules and the sign rules you can use that as it would create "doubt" as to the terms you agreed.

Coj77

Not specifically signed up to a parking contract or agreement, but I'm guess signing an employment contract that adheres to Trust Policy and Procedures may tie me in.

I'm no longer an employee at the site so I'll need to check signage again for absolute clarity. I do recall looking for the signs after receiving PCNs and certainly couldn't easily locate within the multi story.

steve1500

Hit the Trust under Freedom of Information ask for a copy of the contract that they have with parking company. They cannot refuse & just say it is commercially confidential


If they haven't used a standard NHS Contract ask for the minutes of the meeting were it wad agreed that they wouldn't use a standard NHS Contract and who ratified the minutes


When making the request the Trust cannot force you to identify yourself. Do it via email, but don't call yourself M Mouse, but M Lewis would be perfectly acceptable.


Re the signage, remember NHS land is PUBLIC land not private land

System

FOI says

"c) Penalty charge notices are charged at £25 if paid within 14 days or £50 if paid within 28 days.

d) This information is not held by the Trust. Penalty charge notices are not collected by the Trust; this is dealt with by APCOA Parking UK Ltd.

e) This income stream is retained by the car parking management company.

f) APCOA use a debt collection company in the first instance to collect unpaid penalty charge notices."

I replied in kind to each with the following;

POPLA is beginning to make the IPC look honest and professional and I'd forecast that if you have sent the appeal above, then all 3 will be rejected. Just take your chances that APCOA will not do court for this small amount of money.

Coupon-mad

APCOA Notice to Keepers do not have the wording for keeper liability. The below issue is nowhere near touching it as regards the missing wording; I wish Newbies would look closer at NTKs and compare them to Schedule 4 more pedantically and see that a lack of 'creditor' is possibly the weakest flaw of several much clearer ones. Don't rely on this little issue alone but 'no keeper liability' should be point #1:

2) 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.

So as you appealed using the template and did not give away who was driving, was that in response to a windscreen PCN?

If so, presumably they never sent any NTK?

If they did send a NTK (or was it called a Notice to Owner?), let's see a scan or photo of both sides of it, suitably redacted of personal stuff and car VRN and PCN number. There must be missing wording, there always was last time I saw one.

If you can't post links yet, change the http to hxxp in the URL to Photobucket, Dropbox or where ever you host the pics.

Just take your chances that APCOA will not do court for this small amount of money.

He/she could, but let's look at the NTK first. Maybe there wasn't one at all - we just need to spell it out to the rookie POPLA Assessors, more along the lines of a Janet & John book and less in the legalese way we always did for 'OLD POPLA' (who were generally so much more legal-minded), so the new POPLA people can't get it wrong and pretend a keeper can be liable somehow, as if by magic.

Coj77

Photo's of one of NTK (both sides) in link below, change hxxp to http obv;

hxxp://s1044.photobucket.com/user/coj77/library/

thanks again for advice

Coupon-mad

http://s1044.photobucket.com/user/coj77/library/?sort=3&page=1

Interesting.

It has been a while since I saw an APCOA 'non-ANPR' Notice to keeper and when you start to read it you think, wow that looks misleading (they call the recipient the 'Respondent' as if it's a court matter!) but I also noticed some nods towards the POFA Schedule 4 wording. 'creditor' and the right sort of wording about inviting the keeper to pay or advise who was driving.

But, where is the fundamental keeper liability 'warning' wording needed from 8f? Is it lower down, or on a nother page, or completely missing? If it's missing then there can be no keeper liability:


8(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)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;

(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);

(d)if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is—

(i)specified in the notice to keeper, 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 (see sub-paragraph (4));

(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—

(i)to pay the unpaid parking charges; or

(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;

(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;

(i)specify the date on which the notice is sent (if it is sent by post) or given (in any other case).

(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).

(4)The notice must be given by—

(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.

(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

(7) {not relevant}

(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—

(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and

(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.

Coj77

Thanks coupon-mad, I now feel a little more optimistic.

I didn't include the bottom half of the second page to enable easier reading; it is concerning How To Pay. However, for completeness here is the wording that is below the photo;

Send a Cheque or Postal Order Blah Blah
Or Call Blah Blah

Should you wish to dispute the issuing of this Parking Charge Notice, you can do so in writing to the address above within 28 days from the 'date of this notice' of this letter. Appeals should include your name, address, vehicle registration mark (VRM) and the parking charge notice (PCN) number to be accepted. All appeals must be directed to APCOA in the first instance. The Independent Appeals Panel POPLA may be engaged as a final avenue of recourse once APCOA's appeals process has been exhausted.

Collection activity may result in increased charges and APCOA Parking (UK) Ltd may engage third party Debt Collectors or commence legal proceedings for the recovery of the charge together with all associated costs should payment not be made within 28 days of the ‘date of this notice’ above


I'll form the draft POPLA appeal and post for final perusal.