Humberside airport VCS PCN overturned on IAS appeal

bodmass · 11 March 2015 at 2:17PM

December 2014 stopped in the infamous layby 'parking trap' for approximately 30 secs to drop someone off. It was our first visit to the airport so we were unfamiliar with the lay out. The vehicle was photographed from a white van parked outside the main terminal and we received a PCN through the post for £60 rising to £100 if not paid within 14 days.

VCS has recently changed affiliation from BPA to IPC and so instead of appeals going through POPLA they now go through the IAS. I read that the IAS do not uphold many appeals however we gave it a go and had the PCN successfully overturned.

I will post the full appeal shortly but the main point raised was that POFA 2012 regs do not apply to Humberside airport as it is covered under separate byelaws. As long as you don't reveal who the driver of the vehicle was they can't use POFA 2012 to enforce the charge on the keeper of the vehicle. Their follow up letter to the keeper sent after the initial PCN stated that they intended to recover the charge from the keeper of the vehicle under the assumption that they were the driver! It was pointed out in the appeal that the identity of the driver would not be revealed, nor could it be assumed and as POFA 2012 doesn't apply on Humberside airport land the PCN should be dropped.

Coupon-mad · 11 March 2015 at 2:26PM

Wow well done - rare to win at IAS.

Did the IAS chappie not say 'but on the balance of probabilities the driver was the keeper and we are safe to assume that they were, because he/she has refused to say, so the POFA doesn't matter'?

ManxRed · 11 March 2015 at 2:28PM

Interesting. I think I saw one the other day where evidence was submitted that the RK wasn't the driver and was upheld, but usually where no evidence is sent then, as CM says, the IAS also say that they assume the RK was driving.

Marktheshark · 11 March 2015 at 2:29PM

They have to allow some to remain looking "fair" they appear to be random drawn out of the bag and one legal point that works this week wont work next.

From what I have seen so far, saying a kangaroo was the driver is as likely to win at IPA as a legal point.

Ralph-y · 11 March 2015 at 2:36PM

This appeal (after it being posted up) should now be included in any similar airport appeals ........ if future appeals are not treated the same then it would be further proof of kangaroo (isim)

Ralph:cool:

Castle · 11 March 2015 at 2:46PM

Maybe all of the Kangaroos were busy and they had to outsource it to the Koala Bears!

bodmass · 11 March 2015 at 8:31PM

As promised the full appeal!!!!!

Hi,

PCN No ***********
Vehicle reg: **** ***

By entering into this appeal I am not inferring in any way that I will be bound by its verdict and if the IAS fail to find in my favour I reserve the right to reject their verdict.
I'm appealing against my private parking charge on the following grounds

A ‘parking charge’ cannot be applied to a no stopping zone.
The amount charged does not represent a genuine pre-estimate of loss
No landowner contract nor legal standing to form contracts or charge drivers
No contract with registered keeper as per ‘The Consumer Contracts (Information, Cancellation & Additional Payments) Regulations 2013’
The registered keeper is not liable for this charge under POFA 2012 as Humberside Airport is subject to airport bylaws.
Notice to Keeper sent outside mandatory timescales for the legislation VCS are using to bring action (POFA 2012).
VCS are trying to enforce an unfair contract as per ‘Unfair Terms in Consumer Contracts Regulations 1999’ & OFT ‘Unfair Contract Terms
Guidance’
Incorrect information on PCN.
The PCN breaches the AOS code of practice in a number of areas

VCS have issued a PCN ‘Parking Charge Notice’ however they have stated that the PCN is for ‘stopping on a roadway where stopping is prohibited’. The PCN issued by VCS contradicts itself, it cannot be a ‘parking charge’ if it is for an alleged stopping offence. The area where the alleged offence took place is not in the airport car park so therefore no parking charge applies. Exactly what is the purpose of the charge? I believe that the charge amounts to an attempt to charge a penalty which is illegal as VCS have no authority under law to issue a fixed penalty notice.
The amount demanded doesn’t represent a genuine pre-estimate of loss, nor is it a core price term nor does it reflect any material damage to Humberside airport or VCS. The fact that the charge is none-itemised and given as a round figure to the maximum amount allowed (also with the minimum amount of discount offered for payment within 14 days) under the AOS Code of Practice (Schedule 5) means that this charge can only be interpreted as quite literally no-more than a disguised penalty. Which has been issued in the form of a misleading un-solicited invoice with the aim of maximising revenue for VCS.

If the charge is an attempt at gaining compensation for a loss to the businesses then it is not commercially justified and has no basis in law to be claimed. The first 15 minutes in the Humberside Airport pick up / drop off car park are free; the alleged contravention lasted seconds which is significantly less than 15 minutes and Vehicle Control Services Ltd (VCS) are demanding payment of £60 for what would have been a period of free parking. Therefore there has been no loss to the business.

Therefore the parking charge is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The amount claimed is excessive and is being enforced as a penalty for allegedly stopping. I wish to see a breakdown of the cost calculations relating to this charge; given all of the costs must represent a loss resulting from the alleged breach at the time. Note: the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting an IAS defence. Also losses must not include normal overheads costs incurred by VCS in the running the business or the manning of the airport premises.

Furthermore VCS have already previously lost appeals on this point ‘VCS v Bycroft’ & ‘VCS v Oughton’. Both cases were at Humberside airport and both were for stopping momentarily in the exact same layby location i.e. both cases were identical to this one and yet again VCS have failed to provide a genuine pre-estimate of loss. Therefore on this point alone there can be no justification for rejection of this appeal.
No landowner contract nor legal standing to form contracts or charge drivers

As VCS are not the owners of this land and as such they cannot form a contract with the driver, I wish VCS to provide me with a full un-redacted copy of their contract with the landowner which allows them to form such a contract. A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives VCS the legal standing to levy these charges nor pursue them in the courts in their own name as creditor.
I reject strongly that any contract was ever entered into by the motorist when entering the site and I find it ludicrous that a few poorly designed and positioned signs which can’t possibly be read properly from a moving vehicle can be used as a basis for contract. The signs are adjacent to the main airport roadways therefore a driver can’t stop and read them properly which contravenes the AOS code of practice section 17.1 (Grace Period)

‘Drivers should be allowed a sufficient amount of time in order to park and read any signs in order that they may make an informed decision as to whether or not to remain on the site before any enforcement action is taken by you or your agents’.

As stated the position of the signs do not allow for the above. The amount of detail on your signs and the fact they do not fully face the oncoming traffic means they cannot be read fully from a moving vehicle.

According to the VCS signage at the airport, the £100 is an ‘Automatic parking charge’ in a ‘no stopping zone’. They cannot offer contract terms for a service which does not exist! There can be no contract to do something that is not permittedA contractually agreed sum is a fee specified within the terms of a contract i.e. the price to be paid for x amount of parking.
VCS are attempting to say the charge is a contractually agreed sum but they fail - it isn't.
In order for there to be a contract there must be an offer, acceptance and an exchange of ‘consideration’ between the parties (i.e. each party must receive something of value from the other). If only one party receives the ‘consideration’ there can be no contract.
So it can’t be a contractually agreed fee if what you are being asked to pay for is something that is NOT allowed because, clearly that’s a nonsense and, it fails to establish the essential requirements of a contract because there is no exchange of consideration when you are being asked to pay but get nothing in return.
Because permission to park cannot be granted when parking isn't allowed the parking charge cannot be a contractual price. Instead, the charge is still a sum sought as damages, and therefore must be shown to be a genuine pre estimate of the loss which may be caused by the parking breach. As has already been established in point 1 this has not been carried out.

VCS have breached the new Consumer Contracts Directive from the EU, specifically the information requirements in the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013:

They failed to serve by 'durable medium' in advance, the geographical address and phone number of their client, since VCS is acting as an agent of the principle, the owners of Humberside Airport.

Also they failed to ensure that the contract was 'expressly agreed' which is a requirement of the regulations - agreement can no longer be assumed or implied. It is trite law that a contract read (or in this case, not read) merely from signage leads only to 'implied consent': 'a manifestation of consent to something through conduct, including inaction or silence' or ' Consent that is inferred from signs, actions, or facts, or by inaction or silence.'

Quite clearly express consent (as required by this law) was never given to enter into contract.

Quite clearly express consent (as required by this law) was never given to be subject to additional unsolicited charges which is what this PCN quite clearly amounts to.

So it fails the test of 'express agreement' in advance of a consumer contract, which is now demanded by the EU Directive and current Consumer Regulations i.e.'Express consent is clearly and unmistakably stated, rather than implied.'

It is the will of Parliament, following the recent EU Directives on Consumer Contracts, that UK consumer contracts are now unified in terms of what is required by way of information before the contract is concluded. Also contracts must be 'expressly agreed' so a contract based merely on implied consent from a sign, fails the new statutory regulations:

These Regulations apply to all UK consumer contracts from June 2014, unless they are within the exempt list (which a parking contract is not).
The information to be given to consumers is provided in Schedule 2 (On-Premises) and Schedule 2 (off premises and distance contracts) of the Regulations.''

Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited charge not expressly agreed at all, so this is a breach of the Regulations).

Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Another breach by VCS

Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract
No payments were expressly agreed in any way.

Information breaches of these Regulations:
This Operator has failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract
''13.—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and
(b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be
provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect off paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.''

Everything that is required by this statute has been omitted, including no information given about the right to withdraw in the case of a distance contract (because this is certainly not one that can be agreed face to face). There is no exemption from this even for distance contracts with limited space or time. Even if this is not considered to be a 'distance contract' the Regulations set out that all Consumer Contracts (except 'exempt' ones which parking contracts are not) require certain information including the geographical address and phone number of the principal, for complaints, where a trader is an agent.

This statutory information was missing and it was not served in a durable medium beforehand, nor was any term 'expressly agreed' so the contract breaches the above statutory regulations.

Regards 13. (1)VCS have failed to provide ‘the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used,’ The signs contain too much information to be read from a moving vehicle and are positioned alongside main airport roadways so do not allow for motorists to stop and read them properly without blocking the road way. Therefore this is a clear breach of the regulations regarding distance contracts.

The linked Regulations show that a failure to provide the statutory information and to obtain express agreement, now renders any UK consumer contract unrecoverable.

bodmass · 11 March 2015 at 8:34PM

5. VCS are attempting to proceed with action against the registered keeper using POFA2012 as can been seen by allowing 21days for appeal as per POFA 2012 regs. The registered keeper is not liable for this charge as Humberside Airport is designated as an airport by the Secretary of State and therefore roads within the airport are subject to airport bylaws and so your basis to pursue the registered keeper under POFA 2012 does not apply.

If VCS believe that POFA 2012 is enforceable then they would be required to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws. I know this evidence does not exist!

There will be no admission as to who was driving and no assumption can be drawn as such therefore VCS must withdraw their action against the registered keeper. VCS also has no legal basis to pursue the keeper on the pure assumption alone that they were the driver. Any further contact with the registered keeper will be considered harassment.

6. Regarding the use of POFA 2012. The date of the alleged contravention is 01/12/2014 yet the PCN was issued on 13/01/2015. This is outside the timescale for sending the notice which should be 14 days from the alleged contravention as stated POFA 2012 9 (4) (b)

7. VCS are trying to enforce an unfair contract as per ‘The Unfair Terms in Consumer Contracts Regulations 1999’

Unfair Terms
5(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

Also the OFT ‘Unfair Contract Terms Guidance’:

Group 18(a): Allowing the supplier to impose unfair financial burdens

‘'18.1.3 ...transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.’’

8. The PCN states the reason for the alleged contravention was ‘Stopping on a roadway where stopping is prohibited’. This information is misleading and incorrect. The area where the car was pictured is quite clearly a layby area adjacent to the roadway which is designed specifically for vehicles to stop without blocking the main roadway! Furthermore the layby area is outside of the double red lines which indicate the boundaries of the so called ‘red route zone’ so therefore cannot be classed as part of the VCS defined ‘no stopping area.
The terminology used by VCS themselves to describe the no stopping area as ‘red route zone’. The layby area is quite clearly not part of any route, it is in fact quite clearly off the route of the ‘roadway’

9. The PCN breaches the IPC own code of practice (Accredited Operator Scheme) in the following areas (some of which have been previously mentioned above but are included again for clarity).

Part B
8.1 If your charges amount to damages you should be able to demonstrate how such charges are calculated for each site as a ‘genuine pre-estimated loss’ in order to be able to justify the amounts.
VCS have breached this part of the code as they have failed to produce a ‘genuine pre-estimated loss’ as covered under point 2 above.
14.1 Predatory Tactics – ‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system as defined in schedule 2 to the code.’
The so called ‘red route zone’ is poorly identified. The entry and exit to the so called ‘red route zone’ is poorly sign posted. As can be seen by the third photograph the red lines are quite thin and dark and so do not contrast well against the road surface especially when compared to a normal double yellow line marking. The red lines run along the edge of the road and do not cover the layby kerb area. Therefore a car which crosses the red lines into the layby area has effectively left the so called ‘red route zone’.

There are no clear signs or markings relating specifically to the layby that could be identified without stopping a vehicle.

As can be seen by the pictures on the PCN the brake lights were on therefore the vehicle engine was running so the vehicle was not parked or stopped for any considerable length of time and was causing no blockages as can be seen there were no other road traffic vehicles in the area. Therefore the non-discretionary nature of the charges demonstrates a predatory motive behind it.

The area in question could be more effectively managed by means of physical restriction i.e. automatic barrier access to the layby area to allow access only to vehicles which have been granted prior access permission by the airport authority. In effect any vehicle is allowed to stop in this area as no form of physical restriction is in place to prevent vehicles entering this area. Instead entry and stopping is allowed for the purposes of photographing motorists. Therefore the action of VCS contradicts the no stopping principle.

The very act of having a camera van parked permanently along from the area is the definition of predatory. Also issuing of a non-itemised invoice to the maximum value permitted under the AOS Code of Practice (Schedule 5) means that the whole exercise can only be interpreted as a way maximising revenue for VCS. This area is in effect a trap where motorists are misled into stopping for financial gain by VCS.

17 Grace period
17.1 Drivers should be allowed a sufficient amount of time in order to park and read any signs in order that they may make an informed decision as to whether or not to remain on the site before any enforcement action is taken by you or your agents.
The signs are positioned alongside main airport roadways and do not allow for motorists to stop and read them properly without blocking the road way, which contradicts VCS claimed road management objective. Therefore there can be no contract with registered keeper as per ‘The Consumer Contracts (Information, Cancellation & Additional Payments) Regulations 2013’

Part C (Operations in England and Wales)
1 Applying for keeper details where keeper liability is sought

1. If you intend to be able to be able to recover unpaid parking charges from the keeper of a vehicle then you must request Keeper details in accordance with schedule 4 of POFA 2012’
  
  VCS are pursuing the keeper on the assumption alone that they were the driver. The registered keeper is not liable for this charge as Humberside Airport is designated as an airport by the Secretary of State and therefore roads within the airport are subject to airport bylaws and so POFA 2012 does not apply.
2. When requesting keeper details otherwise than in accordance with the protection of Freedom Act 2012 you must inform the DVLA that you are not seeking to be able to rely upon keeper liability should they ask you for that information.

As VCS are proceeding with action against the registered keeper alone then I put it to them that they have not complied with the above guideline unless they can provide evidence that they have done so. If this information has been requested outside of POFA 2012 then I reserve the right to raise a formal complaint with the DVLA
1.5 ‘You must apply for keeper details only where you have ‘reasonable cause’ to do so’
As VCS are aware of the fact that the keeper is not liable as POFA 2012 doesn’t apply to an airport then they have no reasonable cause to apply for the keeper details.
3.1(b) 7 5.1(b) Specified the period of parking to which the notice relates.
The PCN does not specify the time period to which the parking relates. Therefore it can’t be used as a basis for claiming damages or loss against myself.
7 ‘Applying for keeper details where keeper liability is not sought’
7.3 ‘Where you have not complied with the terms of POFA, you must not infer that keeper liability exists’
VCS have contravened this on the PCN by stating ‘We may pursue the registered keeper for any Parking Charge amount that remains outstanding on the assumption that they were the driver’. This is quite clearly an attempt to infer liability upon the keeper when the identity of the driver has not been disclosed. VCS also has no legal basis to pursue the keeper on the assumption alone that they were the driver.

In Summary
I believe I have proved beyond any doubt that the action which VCS has brought against me is without foundation. Furthermore as proved above many of their actions contravene the law and the IPC code of practice. It shall form the basis of a formal complaint against VCS for breach of code and were law has been breached further action should I deem it necessary. However if VCS agree to drop their action against me at this point then I shall agree not to raise a complaint or pursue court action against them for the illegal nature of their business. However should they fail to unequivocally drop their action against me then I will proceed with this action against them. Furthermore I shall defend any court action by VCS vigorously including full use of any court appeal system if it becomes required. I will also counter charge VCS for harassment, damages and costs brought about by them.
I will also robustly reject harassment by ‘debt recovery agencies’ who attempt to extort money from me on behalf of VCS without a county court judgement. They shall also be subject to the same level of scrutiny as I have given VCS regarding the PCN as demonstrated above and I reserve the right to make formal complaint and court action against any such agency.
If IAS fail to find in my favour then I wish to see a full point by point breakdown and explanation as to why each point was rejected. Failure to do so will be taken that the rejection of the appeal was of an arbitrary nature and will be used in my further defence. I especially wish to see a full justification for rejection of points which have been upheld at previous appeals (such as point 2). I will also demand they provide details to me of the number of cases which it has reviewed and provide a full breakdown of how many appeals it has upheld and how many it has rejected. So that the true ‘independence’ of the IAS can be established if I wish to take matters further. Failure to do so will be taken that the numbers of rejections will reflect unfavourably upon the IAS.
Yours Sincerely
************

hoohoo · 11 March 2015 at 10:27PM

But what was the actual verdict?

locknation · 11 March 2015 at 11:15PM

Hi bodmass, congratulations on the successful appeal. I am in the midst of drafting my first appeal to VCS for a similar PCN at Doncaster airport so the points raised in your appeal are very useful.

You say that the appeal was upheld on the basis of the POFA 2012 point. May I ask, did VCS actually mention POFA 2012 in their original PCN? It is not mentioned at all on my PCN so I'm not clear if I can use this argument in my appeal? If it was not mentioned in yours, then it is sensible for me to use it in my appeal as you did.

Thanks a lot

HO87 · 12 March 2015 at 5:42AM

As hoohoo has asked, could you post up the actual written adjudication?

On what possible legal basis do VCS continue to attempt to employ POFA at this location given that we were writing (POPLA) appeals setting out the fact that it simply cannot apply well over a year a ago to my certain knowledge?

Oh sorry. My bad. Of course, I should have remembered that the charges all go towards the new SR-S yacht fund.

Humberside airport VCS PCN overturned on IAS appeal

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