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APCOA Birmingham Airport

OBAone
OBAone Posts: 31 Forumite
Seventh Anniversary 10 Posts Name Dropper Combo Breaker
in Parking tickets, fines & parking
Hello all,


Thanks for the amazing work being done on this forum.


Hope someone will be able to help with this.


Just received a PCN from APCOA Birmingham Airport citing alleged contravention of BA01 - Failing to park in a designated parking area that took place on 03/06/2014.


Following this, as directed by the newbie stickie, I've gone through the Paragraph 9 of POFA 2012, and discovered that the letter, written on a standard APCOA letterhead paper, doesn't comply with the following:


1) The letter did NOT specifically mention or identify the "creditor" which isn't in line with Paragraph 9 (2)(h) of POFA 2012. In short, the word "creditor" doesn't appear anywhere within the letter.


2) The letter arrived today (20/06/2014) and the date of the alleged parking offence was 03/06/2014. Although the letter quotes 17/06/2014 as the "DATE OF ISSUE OF THIS NOTICE". Therefore it arrived outside the 14-day relevant period. Am I correct with this?


To this end, I've decided to use the "template appeal letter" in the newbie stickie (Thanks to Coupon-mad). However, I'm not sure how I can include the above two points in the appeal letter.


Can someone please advise?


Many thanks.
«134

Comments

  • bazster
    bazster Posts: 7,436 Forumite
    1,000 Posts Combo Breaker
    Unless they've changed it again APCOA, for its airport sites, doesn't claim that the registered keeper is liable, therefore POFA 2012 Schedule 4 is irrelevant.

    But then, since they're not claiming that the registered keeper is liable, you don't need POFA 2012 Schedule 4 anyway.
    Je suis Charlie.
  • OBAone
    OBAone Posts: 31 Forumite
    Seventh Anniversary 10 Posts Name Dropper Combo Breaker
    bazster wrote: »
    Unless they've changed it again APCOA, for its airport sites, doesn't claim that the registered keeper is liable, therefore POFA 2012 Schedule 4 is irrelevant.

    But then, since they're not claiming that the registered keeper is liable, you don't need POFA 2012 Schedule 4 anyway.



    Thanks. So presumably I can't use the appeal letter template in the newbie stickie?
  • bazster
    bazster Posts: 7,436 Forumite
    1,000 Posts Combo Breaker
    Yes of course you can. The keeper may not be liable but is still entitled to appeal. But you can add appeal point 4:

    4) Birmingham Airport is not "relevant land" for the purposes of POFA 2012 Schedule 4 therefore I cannot be held liable as keeper
    Je suis Charlie.
  • arabesque_101
    arabesque_101 Posts: 146 Forumite
    And also:

    5) I am the keeper and your notice to owner is not compliant with POFA 2012. Therefore only the driver can be held responsible for this charge, not the registered keeper, and as keeper I have no legal obligation to name the driver.

    Note:     As you are pursuing the wrong person, you are advised that complaints are being prepared to submit to the BPA and DVLA and I suggest that you cancel this parking charge immediately to save further embarrassment.
    New members, please refer to "sticky" threads that are alwasys "stuck" at the top of this forum
  • OBAone
    OBAone Posts: 31 Forumite
    Seventh Anniversary 10 Posts Name Dropper Combo Breaker
    bazster wrote: »
    Yes of course you can. The keeper may not be liable but is still entitled to appeal. But you can add appeal point 4:

    4) Birmingham Airport is not "relevant land" for the purposes of POFA 2012 Schedule 4 therefore I cannot be held liable as keeper



    Great, thanks. My appeal letter now looks like this:




    Dear APCOA,

    PCN number xxxxxxx
    As the registered keeper, I have received your parking invoice which of course, I decline your invitation to pay. I wish to invoke your appeals process, since all liability to your company is denied on the following basis:

    1) The amount being claimed is not a genuine pre-estimate of loss to your company or the landowner
    2) Your signage does not comply with your ATA Code of Practice and was not sufficiently prominent to create any contract
    3) You are not the landowner and do not have the standing to offer contracts nor to bring a claim for trespass
    4) Birmingham Airport is not "relevant land" for the purposes of POFA 2012 Schedule 4 therefore I cannot be held liable as keeper.

    Please issue your standard cancellation letter or a specific, detailed rejection letter. If you choose to send the latter, it must state:

    - the legal basis of your charge (i.e. breach, trespass or contractual fee?) as your signage was not seen/accepted by the driver and your recent Notice failed to make the basis of the charge clear. As keeper, I cannot be expected to guess the nature of the allegation.

    - if alleging breach of contract, with your rejection letter I require a breakdown of the liquidated damages suffered, and by whom, and when this calculation was determined and how this particular 'loss' arose. Please also explain how/why you charge a fixed sum no matter whether the alleged contravention was trivial or more serious and how that can amount to a genuine pre-estimate of loss.

    - if alleging trespass please enclose evidence of the perpetrator and proof of the liquidated damages alleged and the calculation of this sum.

    - if alleging 'contractual fee' I require that you now send me a VAT invoice by return and explain the daily rate for parking and service provided for the fee. Failure to provide this information and a VAT invoice now that I have requested it, will be considered evidence that this was not in fact a genuine offer to park for a fee and is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC, on appeal at Luton County Court in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014).

    Take formal note:

    (a) Your unsupported, unsolicited invoice and any further letters if you persist, will constitute harassment. If you continue, your contact and that of any agent will be deemed a 'serious and persistent unwarranted threat' as found by Lord Justice Sedley in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009) and I reserve the right to take the matter further. You have been informed that I consider this to be harassment so any decision to send further letters rather than cancel the invoice will reinforce the evidence of your persistent unwarranted threat and you may be required to justify your actions in court.

    (b) Any obfuscation on your part, such as pretending I have to name the driver, alleging I am too late or unable to appeal as keeper or requiring more evidence when clearly I have already set out my full challenge for this stage, will be reported to the DVLA and to your respective ATA, as a sanctionable breach of your Code of Practice.

    (c) If you reject my challenge and insist upon taking the matter further I must inform you that I may claim my costs from you and my time at the court rate of £18 per hour. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses and legal fees as well as liquidated damages for distress arising from harassment.

    By continuing to pursue me you hereby accept liability to pay my costs when I prevail and you acknowledge and imply full understanding of the above.

    Yours,
  • OBAone
    OBAone Posts: 31 Forumite
    Seventh Anniversary 10 Posts Name Dropper Combo Breaker
    arabesque_101 wrote: »
    And also:

    5) I am the keeper and your notice to owner is not compliant with POFA 2012. Therefore only the driver can be held responsible for this charge, not the registered keeper, and as keeper I have no legal obligation to name the driver.

    Note:     As you are pursuing the wrong person, you are advised that complaints are being prepared to submit to the BPA and DVLA and I suggest that you cancel this parking charge immediately to save further embarrassment.



    Excellent, thanks. I've now added this. So the appeal letter now looks like this:




    Dear APCOA,

    PCN number xxxxxxx
    As the registered keeper, I have received your parking invoice which of course, I decline your invitation to pay. I wish to invoke your appeals process, since all liability to your company is denied on the following basis:

    1) The amount being claimed is not a genuine pre-estimate of loss to your company or the landowner
    2) Your signage does not comply with your ATA Code of Practice and was not sufficiently prominent to create any contract
    3) You are not the landowner and do not have the standing to offer contracts nor to bring a claim for trespass
    4) Birmingham Airport is not "relevant land" for the purposes of POFA 2012 Schedule 4 therefore I cannot be held liable as keeper.


    5) I am the keeper and your notice to owner is not compliant with POFA 2012. Therefore only the driver can be held responsible for this charge, not the registered keeper, and as keeper I have no legal obligation to name the driver.

    Note:     As you are pursuing the wrong person, you are advised that complaints are being prepared to submit to the BPA and DVLA and I suggest that you cancel this parking charge immediately to save further embarrassment.

    Please issue your standard cancellation letter or a specific, detailed rejection letter. If you choose to send the latter, it must state:

    - the legal basis of your charge (i.e. breach, trespass or contractual fee?) as your signage was not seen/accepted by the driver and your recent Notice failed to make the basis of the charge clear. As keeper, I cannot be expected to guess the nature of the allegation.

    - if alleging breach of contract, with your rejection letter I require a breakdown of the liquidated damages suffered, and by whom, and when this calculation was determined and how this particular 'loss' arose. Please also explain how/why you charge a fixed sum no matter whether the alleged contravention was trivial or more serious and how that can amount to a genuine pre-estimate of loss.

    - if alleging trespass please enclose evidence of the perpetrator and proof of the liquidated damages alleged and the calculation of this sum.

    - if alleging 'contractual fee' I require that you now send me a VAT invoice by return and explain the daily rate for parking and service provided for the fee. Failure to provide this information and a VAT invoice now that I have requested it, will be considered evidence that this was not in fact a genuine offer to park for a fee and is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC, on appeal at Luton County Court in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014).

    Take formal note:

    (a) Your unsupported, unsolicited invoice and any further letters if you persist, will constitute harassment. If you continue, your contact and that of any agent will be deemed a 'serious and persistent unwarranted threat' as found by Lord Justice Sedley in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009) and I reserve the right to take the matter further. You have been informed that I consider this to be harassment so any decision to send further letters rather than cancel the invoice will reinforce the evidence of your persistent unwarranted threat and you may be required to justify your actions in court.

    (b) Any obfuscation on your part, such as pretending I have to name the driver, alleging I am too late or unable to appeal as keeper or requiring more evidence when clearly I have already set out my full challenge for this stage, will be reported to the DVLA and to your respective ATA, as a sanctionable breach of your Code of Practice.

    (c) If you reject my challenge and insist upon taking the matter further I must inform you that I may claim my costs from you and my time at the court rate of £18 per hour. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses and legal fees as well as liquidated damages for distress arising from harassment.

    By continuing to pursue me you hereby accept liability to pay my costs when I prevail and you acknowledge and imply full understanding of the above.

    Yours,
  • ColliesCarer
    ColliesCarer Posts: 1,593 Forumite
    Yes that will be fine for your 1st appeal.

    If posting - take to the post office and get a free Certificate of posting (legally deemed to have arrived within 2 working days for 1st class so no need to waste money on recorded/signed for which they often don't sign for anyway)
  • OBAone
    OBAone Posts: 31 Forumite
    Seventh Anniversary 10 Posts Name Dropper Combo Breaker
    Meanwhile, I've just seen the letter used in a thread by Tallone and won the appeal (Forum won't let me post links - Post#62223421).


    The letter seem to address the non mentioning of creditor and lateness of letter as I wrote above.

    Would this be a better appeal letter for my case?

    Copy of letter below (I've edited to suit my dates and airport location).

    Please feel free to advise which of the two letters is best for my case?


    Thanks for your time.


    20th June 2014
    Apcoa Parking
    PO Box 1010
    Middlesex
    UB8 9NT

    Dear Sir or Madam,

    Ticket number: xxxx


    Vehicle registration number:

    The unlawful issue of a ‘Notice to Keeper’ (BPA AOS Code of Practice B.22)

    I am the registered keeper of a motor vehicle registration number

    I refer to recent PCN dated 17/6/2014.

    I assume your “Parking Charge Notice” and the first line being “Notice is hereby served to the registered keeper” that this is a “Notice to Keeper” and along with other references drawn from the Protection of Freedoms Act (PoFA) it is clear that APCOA is dealing with its claim in accordance with the requirements of Schedule 4 of POFA.

    The requirements of Schedule 4 PoFA are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.

    The BPA Ltd AOS Code of Practice (version 2) supports the need for strict compliance (para 21.5 refers).

    APCOA has however failed to comply with the statutory requirements as follows;

    Firstly, in regards to paragraph 9(2)(h) of Schedule 4, PoFA 2012. Whilst your ‘Notice to Keeper’ has indicated that you require a payment to be made to APCOA, there is no specific identification of the “Creditor”, who may, in law, be APCOA or Birmingham Airport or, some other party.

    PoFA requires a ‘Notice to Keeper’ to have words to the effect that “The Creditor is….”

    The wording of Paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the “creditor must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.

    This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided.

    He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”

    Secondly, in addition to APCOA’s failure to specifically identify the “Creditor”, it has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.

    Thirdly, the most serious failure and that which has given me cause to submit a formal complaint to the DVLA.

    You have failed to comply with paragraph 9.4 of Schedule 4 of the Act in that you failed to give the Notice to Keeper to me within the “relevant period”.

    The alleged infringement occurred on the 3rd June 2014 and no ‘Notice to Driver’ was issued at the time. The Notice to Keeper is dated 17th June 2014 which is 14 days after the event and too late to ensure delivery within the statutory 14 days prescribed by PoFA.

    Paragraph 9(4) indicates that the Notice to Keeper must be given to the registered keeper not more than 14 days after the car allegedly infringed the car park terms and conditions. Paragraph 9(6) states that “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” which in this case would be the 19th June 2014.

    Your company would have been well aware of these facts when it took the decision to send out the Notice to Keeper under PoFA. You have misrepresented the legal position in the full knowledge that there can be no keeper liability.

    That is an aggravating feature which the DVLA must take into account in determining what sanction to issue to your company.

    I therefore expect you to immediately cancel the ‘parking charge’ and inform me, in writing that you have done so.

    If however, you reject this challenge, then, in accordance with the BPA Ltd AOS Code of Practice (version 2) 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer this matter (and any further issues that I may subsequently raise) for their adjudication on the matter.

    I do not expect to receive a ‘generic’ template response and which fails to address the specific issues that I have raised with you. No further correspondence will be entered into.

    Yours sincerely
  • bazster
    bazster Posts: 7,436 Forumite
    1,000 Posts Combo Breaker
    But look at the age of that thread. APCOA used to claim keeper liability, they stopped doing so sometime last year. So unless they've changed again Tallone's letter is a long attack on something they no longer do and as such is obsolete.

    If you want to be absolutely sure then you'd need to post up the Notice you received from them, redacted of all personal details. Haven't seen one of their airport jobbies for a while 'cos they are so easy to beat anyway.

    But in my opinion you are making a mountain out of a molehill. Just get on with it is my recommendation.
    Je suis Charlie.
  • OBAone
    OBAone Posts: 31 Forumite
    Seventh Anniversary 10 Posts Name Dropper Combo Breaker
    bazster wrote: »
    But look at the age of that thread. APCOA used to claim keeper liability, they stopped doing so sometime last year. So unless they've changed again Tallone's letter is a long attack on something they no longer do and as such is obsolete.

    If you want to be absolutely sure then you'd need to post up the Notice you received from them, redacted of all personal details. Haven't seen one of their airport jobbies for a while 'cos they are so easy to beat anyway.

    But in my opinion you are making a mountain out of a molehill. Just get on with it is my recommendation.

    Thanks Bazster; guess I'm abit of a worrier. Below is a copy of the actual letter. Please advise. Thanks once again:


    PARKING CHARGE NOTICE
    CHARGE NOTICE No: xxxxxxxxx
    VEHICL REGISTRATION No: xxxxxxxxx

    DATE OF ISSUE OF THIS NOTICE: 17/06/2014

    Notice is hereby served to the registered keeper of vehicleregistration mark xxxxxxxxx

    For the alleged contravention of BA01-Failing to park in designatedparking area, captured by ANPR Camera at Birmingham Int’l Airport on03/06/2014.

    The alleged contravention is a BREACH OF THE TERMS ANDCONDITIONS OF USE of Birmingham Int’l Airport. Signs are clearly displayedthroughout the area showing these terms and conditions.

    Please note that the driver of the vehicle at the time ofthe breach of terms and conditions detailed above is required to pay theparking charges in respect of the above and these have not yet been paid infull.

    As we do not know either the name of the driver or theircurrent serviceable address, we request that you either pay the full amount outstandingas noted above; or if you were not the driver of the vehicle at the specifiedperiod provide us with the name of the driver and their current serviceable addressand pass this notice to them. If you have sold the vehicle, please provide uswith the details of whom you sold to as well as proof of sale.

    If you are a Hire company please provide the name and serviceableaddress for the Hirer along with a statement signed by or on behalf of yourfirm to the effect that the material time the vehicle was hired to a namedperson under a hire agreement, a copy of the hire agreement and a copy of astatement of liability by the hirer under the hire agreement, within 28 days ofthe ‘date given’ above.

    A charge of £100.00 is payable and must be paid before theend of the period of 28 days beginning with the ‘date given’ above. If thecharge is paid before the end of the period of 14 days beginning with the ‘dategiven’, the amount of the charge will be reduced by 50%.

    The vehicle keeper data has been obtained from the DVLA(under Regulation 27(1)(e) of the Road Vehicles (Registration and Licensing)Regulations 2002). They have provided the details above as the registeredkeeper of the vehicle at the date and time of issue of Parking Charge Notice.If you believe your data has been used/provided inappropriately, you can notifythe DVLA by contacting 0843 515 8104.

    Collection activity may result in increased charges andAPCOA Parking (UK) Ltd may engage 3rd party Debt Collectors orcommence legal proceedings for the recovery of the charge together with allassociated costs.

    Should you wish to dispute the issuing of this PCN, you cando so in writing to the address listed below within 28 days from the ‘dategiven’ of this letter. All appeals must be directed to APCOA in the firstinstance. The Independent Appeals Panel – POPLA, may be engaged as a finalavenue of recourse once APCOA’s appeals has been exhausted.
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