Parking Charge Notice - VCS

mib150

Stroma wrote: »

This is a notice to keeper, yet they are saying you've lost the right to appeal, this is not correct as the keeper has the right to do this, the reason amongst many is that this could be your first time in knowing this as the ticket on vehicle could have been taken. They also don't mention popla unless its on the back

Hi Stroma,

Since receiving this I appealed to VCS - denied believe it or not!
I have a POPLA code and I'm in the process of composing an appeal to submit to them.
As you can see there is no mention of the creditor on the front or back - only who to make the cheque payable to - is this the same as the creditor?

Cheers

Stroma

No the notice keeper must under pofa 2012 name the creditor, in the format of

The creditor is - Blah Blah

mib150

Stroma wrote: »

No the notice keeper must under pofa 2012 name the creditor, in the format of

The creditor is - Blah Blah

Cheers, I'll leave that bit in then!

mib150

Here we go, this is what I have composed so far:

Parking Charge Notice (POPLA REF:

---

)

On ********* I was the registered keeper of vehicle registration number *********. As the registered keeper of this vehicle I dispute and deny the charge for the reasons set out below:

1. No contract

There was no contract between the driver and Vehicle Control Services (VCS). There are no signs with contractual information (as per paragraph 18.2 of BPA Code Of Practice - Entrance signs play an important part in establishing a parking contract……….. you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of) when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

2. Trespass

If there was no contract, then at most the driver was guilty of a civil trespass (though this is neither admitted nor denied). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the car park and that the car park was not completely full when the driver parked or when the driver left, there was in fact no loss at all.


3. No Landowners Contract

I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give VCS any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, VCS’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 VCS to demonstrate their legal ownership of the land to POPLA.

I contend that VCS 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.

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 VCS to prove otherwise, therefore I require that VCS produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it in the light of VCS -v- HMRC 2012.

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



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. This they have failed to do and thus have have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.


4. Punitive/unfair/unreasonable charge

The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." In this case, VCS has failed to provide any calculation to show how the £100 figure is arrived at, whether as an actual or pre-estimated loss. It is the Appellant's position that VCS has suffered no loss whatsoever in this case. Even if there was a contract (which is denied), the following matters are relevant:

4(a). Punitive

The parking charge VCS is imposing is punitive and therefore void (i.e. unenforceable). The £100 parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. This would also apply to any mention of any costs incurred through debt recovery unless it followed a court order.


4(b). Unfair

The £100 charge VCS is imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e):

‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’

Furthermore, Regulation 5(1) says:

‘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’

And 5(2), which states:

‘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.’




4(c). Unreasonable

The £100 parking charge VCS is imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:

‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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 outcome”.


5. Genuine Loss.

In the unlikely event that VCS do have full rights to make contracts with individual drivers, either on behalf of the landowner, then I would request that VCS show a breakdown of the actual pre-estimate loss in connection with this alleged contravention. The amount claimed must not include the costs of running their business. It should only be the costs they incurred solely due to this contravention. This does not include any costs that they would have had to carry if they had been elsewhere or any operational day to day running costs (for example, by erecting signage and employing administration staff, wages, uniform, rents), as per VCS v Ibbotson - 2012

At the car park in question there was no parking charge levied, and the car park is “free”. On the date of the claimed loss it was only at about 15% capacity and there was no physical damage caused. There can have been no loss arising from this incident.

In addition the driver did in fact visit the store and purchase goods, therefore no loss was suffered by the operator, land owner or store.


Yours faithfully,

******************************


What do you think??

Umkomaas

You've covered two of the 'silver bullet' points - proprietary interest and pre-estimate of losses. You've touched on signage in a couple places, but you have not made it a freestanding point in its own right.

Were the signs compliant with the BPA CoP? If you think they weren't, then ask POPLA to require the Operator to prove that their signage was CoP compliant.

Also, this paragraph from appeal point 3 might be better placed in your first appeal point.

I contend that VCS 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.

Otherwise, from my point of view, it's looking good.

If you're not pushed against the deadline for submission, give it another 24 hours on here to allow others to make any input.

HTH

nigelbb

Umkomaas wrote: »

Were the signs compliant with the BPA CoP? If you think they weren't, then ask POPLA to require the Operator to prove that their signage was CoP compliant.

Entrance signs are so frequently non-compliant that every appeal to POPLA should require the PPC to provide proof that they are compliant. This is another good opportunity for the PPC to screw up e.g. as per at least one of the Parking Prankster's appeals where the PPC sent a map & details of the wrong car park.

mib150

Umkomaas wrote: »

You've covered two of the 'silver bullet' points - proprietary interest and pre-estimate of losses. You've touched on signage in a couple places, but you have not made it a freestanding point in its own right.

Were the signs compliant with the BPA CoP? If you think they weren't, then ask POPLA to require the Operator to prove that their signage was CoP compliant.

Also, this paragraph from appeal point 3 might be better placed in your first appeal point.



Otherwise, from my point of view, it's looking good.

If you're not pushed against the deadline for submission, give it another 24 hours on here to allow others to make any input.

HTH

Definately no entrance signs whatsoever! I'll add this as a point outright.
Thanks

mib150

Tweeked version now reads:


Parking Charge Notice (POPLA REF:

---

)

On ********* I was the registered keeper of vehicle registration number *********. As the registered keeper of this vehicle I dispute and deny the charge for the reasons set out below:

1. No contract

There was no contract between the driver and Vehicle Control Services (VCS). There are no signs with contractual information when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.
I contend that VCS 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.

2. Signage Not Compliant

The BPA code of practice clearly states in paragraphs 18.1 and 18.2 the following:

18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.

18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

Due to the failure to display compliant entrance signs, as per the code of practice outlined above, it is reasonable to conclude that a contract (if it were in place) could not be formed due to this omission.

3. Trespass

If there was no contract, then at most the driver was guilty of a civil trespass (though this is neither admitted nor denied). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the car park and that the car park was not completely full when the driver parked or when the driver left, there was in fact no loss at all.


4. No Landowners Contract

I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give VCS any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, VCS’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 VCS to demonstrate their legal ownership of the land to POPLA.


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 VCS to prove otherwise, therefore I require that VCS produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it in the light of VCS -v- HMRC 2012.

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

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. This they have failed to do and thus have have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.


5. Punitive/unfair/unreasonable charge

The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." In this case, VCS has failed to provide any calculation to show how the £100 figure is arrived at, whether as an actual or pre-estimated loss. It is the Appellant's position that VCS has suffered no loss whatsoever in this case. Even if there was a contract (which is denied), the following matters are relevant:

5(a). Punitive

The parking charge VCS is imposing is punitive and therefore void (i.e. unenforceable). The £100 parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. This would also apply to any mention of any costs incurred through debt recovery unless it followed a court order.


5(b). Unfair

The £100 charge VCS is imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e):

‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’

Furthermore, Regulation 5(1) says:

‘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’

And 5(2), which states:

‘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.’




5(c). Unreasonable

The £100 parking charge VCS is imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:

‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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 outcome”.


6. Genuine Loss.

In the unlikely event that VCS do have full rights to make contracts with individual drivers, either on behalf of the landowner, then I would request that VCS show a breakdown of the actual pre-estimate loss in connection with this alleged contravention. The amount claimed must not include the costs of running their business. It should only be the costs they incurred solely due to this contravention. This does not include any costs that they would have had to carry if they had been elsewhere or any operational day to day running costs (for example, by erecting signage and employing administration staff, wages, uniform, rents), as per VCS v Ibbotson - 2012

At the car park in question there was no parking charge levied, and the car park is “free”. On the date of the claimed loss it was only at about 15% capacity and there was no physical damage caused. There can have been no loss arising from this incident.

In addition the driver did in fact visit the store and purchase goods, therefore no loss was suffered by the operator, land owner or store.


Yours faithfully,

******************************



Better?
Cheers

Umkomaas

Signs

You need to ask POPLA to require the Operator to provide proof that their signs are CoP compliant, they won't do that unless you ask. Otherwise they will probably just read the stuff you've put in there and move to the next point without taking it into consideration, making it somewhat pointless in raising.

You have to be very clear that you are putting the Operator to 'strict proof' on any issue you are challenging - not just making a general statement about the fact you don't think it's 'right'.

mib150

Umkomaas wrote: »

Signs

You need to ask POPLA to require the Operator to provide proof that their signs are CoP compliant, they won't do that unless you ask. Otherwise they will probably just read the stuff you've put in there and move to the next point without taking it into consideration, making it somewhat pointless in raising.

You have to be very clear that you are putting the Operator to 'strict proof' on any issue you are challenging - not just making a general statement about the fact you don't think it's 'right'.

Thanks for that I will add that request.

Just another query that has come to mind whilst reading various other threads.
In my draft appeal I state that 'The driver did enter the store and purchase goods'
To date the actual driver has not been disclosed, would my statement above (which suggests the driver is known) lead me to be forced to name the driver?

PS The appeal has to be submitted by 30th September.