Liverpool Airport stopping on a roadway

xyzperson

I have just received a refusal of my appeal and told to go to POPLA. Any advice about how to be successful? Has anyone had a successful appeal? Help would be gratefully received. Thanks

peter_the_piper

posts 9, 10, 11 are a good start.

Coupon-mad

Start your POPLA appeal saying you are not liable for the parking charge as you are the registered keeper and were not driving. Then continue in the usual POPLA appeal style you will see on other threads. Here are some POPLA appeal examples and tips of what to include:

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

Plus, add in much of the 'strong appeal' detail I wrote here (which was a first appeal addressed to VCS re Robin Hood Airport, not a POPLA appeal):

https://forums.moneysavingexpert.com/discussion/comment/62895446#Comment_62895446

But the points can be amended to talk about VCS in the third person as part of a POPLA appeal.

Do post a draft of the appeal you cobble together if you want us to check it/advise if anything has been missed. It will be looooong POPLA appeal!

xyzperson

Thanks for this - which I shall look at in great detail. And yes - I will post my draft letter - but it will take me a couple of days. But a question. In my original letter of appeal - VCN have not addressed most of the points I made. Should I reiterate them in the POPLA appeal - saying they were unanswered?

nigelbb

xyzperson wrote: »

Thanks for this - which I shall look at in great detail. And yes - I will post my draft letter - but it will take me a couple of days. But a question. In my original letter of appeal - VCN have not addressed most of the points I made. Should I reiterate them in the POPLA appeal - saying they were unanswered?

Absolutely!

Kilmory_Joe

Hi all, I was at JLA a couple of nights ago, pulled over so as not to interfere with the flow of traffic, where I noticed a large lady sat in a Vito van smiling at me as a device on top of the van swung round - I now assume this was the camera zapping me.
I haven't seen any notices or letter as yet but no doubt one will be winging (pardon the pun) its way to us. I'm not the registered keeper, didn't see any signs threatening 'fines' or charges and if they do exist, I would have had to stop to read them in the dark - oh the irony.

I would be grateful if somebody would guide me through the procedure of what is now expected to drop through the letterbox any day soon and how to tackle this 'charge' - 'fine'. I know there are many topics regarding JLA but with so many and so many replies they become confusing, especially as I haven't seen any that declare the "charge, penalty, fine" has been written off.

Joe.

Umkomaas

Kilmory_Joe wrote: »

Hi all, I was at JLA a couple of nights ago, pulled over so as not to interfere with the flow of traffic, where I noticed a large lady sat in a Vito van smiling at me as a device on top of the van swung round - I now assume this was the camera zapping me.
I haven't seen any notices or letter as yet but no doubt one will be winging (pardon the pun) its way to us. I'm not the registered keeper, didn't see any signs threatening 'fines' or charges and if they do exist, I would have had to stop to read them in the dark - oh the irony.

I would be grateful if somebody would guide me through the procedure of what is now expected to drop through the letterbox any day soon and how to tackle this 'charge' - 'fine'. I know there are many topics regarding JLA but with so many and so many replies they become confusing, especially as I haven't seen any that declare the "charge, penalty, fine" has been written off.

Joe.

You do need to start a new thread as despite your case being at the same airport there may well be differences in circumstances (you've just highlighted the first one - you are not the RK) which means advice will be different and will cause confusion.

As a quick reply - there will be nothing dropping through your letter box, but quite likely through the RK's. Unless they name you as the driver they will be getting all the hassle in dealing with this.

It's not recommended at this earliest stage to declare who might or might not have been the driver.

For the meantime, do nothing until any communication is received by the RK, then come back with a new thread of your own. But you do need to start reading the most recent of threads to get yourself clued up on this stuff as you and the RK are going to have to do a good bit to get rid of the charge. Whatever you do, do NOT ignore any communication that arrives. And retain all paperwork (including envelopes if they are date stamped), dates are particularly important - you'll learn more about 'dates' as you read through the forum.

Kilmory_Joe

Umkomaas - thank you for your advice.

xyzperson

Hi, Help would be appreciated with my appeal which is below. And should I include photographs from google maps - and the photos sent with the PCN?
Dear POPLA adjudicator,

Re: Vehicle Control Services Ltd: PCN Code:
Verification Code:
On ….2013 VCS issued a parking charge notice of £100 because the above vehicle was allegedly stopped on a private road where “stopping on a roadway where stopping is prohibited”.
I refer to the above Parking Charge Notice regarding the above matter. I appeal / challenge this PCN on the following grounds. Details about each ground will be given below. In regard to the breaches described below it only suffices for the PCN to breach one condition to render the PCN unenforceable against the keeper.
1. I am not the Registered Keeper. POFA Schedule 4
2. VCS failed to consider the points properly raised in my appeal. My need to make this POPLA appeal is vexatious. It also wastes the time of POPLA and misuses their fees to the appeal process.
3. Data Protection Act: CCTV Footage. No opportunity has been given to view the footage of the incident.
4. POFA 7(1)A The location of the alleged offence not identified. POFA Schedule 4 s 9(2)(a) (RB) and the relevant land on which it was parked must be identified POFA Schedule 4 7(2)(a)
5. Fails to Specify the circumstances in which the parking charges arose. POFA Schedule 4 s 9(2)c
6. Failing to provide signage POFA Schedule 4 s 12 (3)(a)
6.1 BPA code
6.2 Traffic Signs Manual: Department of Transport
6.3 “On-street parking control signs and road markings”
7. No contract was entered into by the driver and / or the keeper of the vehicle
8. No genuine pre-estimate of loss
9. Contact with the landowner – not compliant with the BPA Code of Practice and no legal status to offer parking or enforce tickets
10. Contact with the landowner – not compliant with the BPA Code of Practive and no legal status to offer parking or enforce charges
CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF
1. I am the Registered Keeper of the vehicle related to the parking charge notice received. I was not the driver at the time. I am, therefore, not liable for a driving offence. The driver has not been identified. This point has been agreed by VCS see their letter refusing my appeal dated 30 August 2013. Stopping or waiting in a restricted area is not a parking offence and it is, therefore, not my responsibility. The alleged event took place on a road and not in a car park and is, therefore, a driving issue.
This point was made in my appeal to VCS when I stated that they had failed to comply with POFA schedule 4 so they could not enforce a PCN against me as the keeper of the vehicle. This point was not addressed in their reply to my appeal.
2. VCS failed to consider the points properly raised in my appeal. My need to make this POPLA appeal is vexatious. It also wastes the time of POPLA and misuses their fees to the appeal process.
My appeal addressed 11 different points. The letter refusing my appeal did not address any of the points. Not one point. The letter mentioned two other points only. The matter concerning the RK is above. The second point was, “it is entirely the motorist’s responsibility to ensure that they adhere to the Terms and Conditions of use for the airports private access roads”. My POPLA appeal will cover this and my original items in more detail .My letter stated when referring to POFA “in regard to the above breaches it only suffices for the PCN to breach one condition to render the PCN unenforceable against the keeper”. I would also ask POPLA to note that my need to make this appeal is vexatious. VCS threatened me with the appeal mechanism rather than consider an appeal properly. They have tried to intimidate me into making payment.
VCS also failed to address the point when I asked for a copy of the footage which they hold or the ability to view it. I do not know how long the car was stopped but from the photographs I have received it appears to be timed at 20.53.33, 20.53.40 and 20.53.43 which is a total of less than 1 minute, in fact 10 seconds.. My appeal will address this later.
3. Data Protection Act: CCTV Footage. No opportunity has been given to view the footage of the incident. My request to view the footage was declined.
Although POPLA does not consider data protection this point is relevant because it informs my next point. I have requested to either be given a copy of the CCTV footage or to have a location where I could view it. Under the Data Protection Act I have a right to see any footage which contains personal information within 40 days. This request was included in my appeal. VCS ignored this in their consideration of my appeal. I have heard nothing from them concerning the footage. This is one reason why I am unable to locate the exact site of the “no stopping” incident.
The CCTV footage is VCS’s main evidence that a parking offence has taken place. I have not seen the footage. I do not know the location of the alleged offence.
To help with my appeal I have included a number of photographs to illustrate my point taken from Google Maps.
The failure to provide the footage suggests that there is a breach of the BPA Code of Practice.
Also
Footage BPA CODE OF PRACTICE BREACH - (part 21) ANPR
VCS have failed to show me any evidence that the records and maintenance of these cameras in this road comply with the requirements of the BPA Code of Practice part 21 (ANPR). The Operator has shown no proof of contemporaneous checks and maintenance of these cameras (in the forum of dated records kept at this site and relating to around the time my vehicle was there) and so I contend these cameras are not compliant with section 21 of the Code.
This failure is also a reason to dismiss the PCN.
4. Location of the alleged offence. POFA 7(1)A
VCS has not identified the location of the offence and simply said “Liverpool John Lennon Airport”. (See the previous Point 3.)The airport has an area of many square miles.
The photographs from VCS show the location of the “alleged stopping” which looks rural rather than an airport. There are no distinguishing features. There are many miles of roads close to Liverpool Airport. The location is not given. It is not possible to see from the photographs supplied the exact location but it was clearly a quiet unmarked place with no indication that stopping was prohibited.
Withholding Diagram Showing Locations and Layout of Signs
POFA 7(1)A states that a PCN should include details of the relevant land on which it was parked and the period of parking to which the notice relates. This information has not been provided to me with the PCN. I do not know the location of the offence or how long it lasted.
This failure is also a reason to dismiss the PCN.
5. Fails to Specify the circumstances in which the parking charges arose. POFA Schedule 4 s 9(2)c
The PCN fails to mention 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;
This failure is also a reason to dismiss the PCN.
6. Failing to provide signage POFA Schedule 4 s 12 (3)(a)
6.1 BPA code
6.2 Traffic Signs Manual: Department of Transport
6.3 “On-street parking control signs and road markings”
POFA Schedule 4 s 12 (3)(a) states:-
(3)The provision made under sub-paragraph (2) may, in particular, include provision—
(a) requiring notices of more than one kind to be displayed on any relevant land;
(b) as to the content or form of any notices required to be displayed; and
(c) as to the location of any notices required to be displayed.
I believe the signs and any core parking terms VCS are relying upon were unclear in all respects. This Operator needs to show POPLA their evidence and signage map/photos which they might contend meet all the requirements I have listed below.
For information I enclose a number of google map shots to show the roads around Liverpool Airport. (list …..???
You will see from the photographs enclosed with the PCN there are no signs at all visible at the place where the alleged contravention took place.
6.1 BPA code
The signage is not compliant with the BPA Code of Practice and nor does it for a contract with the driver.
There are no clear signs on entry to the road leading to the airport which would have communicated the terms & conditions of parking and stopping there to a seated driver in moving traffic on a dual-carriageway. This is a breach of the BPA Code of Practice at Appendix B which sets out strict requirements for entrance signage, including ''The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead'' and ''There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read...''

There were no other signs showing that stopping was not allowed.
There was no indication that this was a private road and that the Highway Code or Department of Transport signs would not apply.
VCS have a duty to make the terms so clear that they cannot be missed. To fail in this respect means that the elements of a contract have not been met. To suggest a breach of contract, VCS also needs to show that the driver actually saw, read and accepted the terms, which they cannot do as it is clearly untrue. The fact that so many drivers accepted these terms knowingly and then received a fine for stopping is perverse and beyond credibility. VCS may tell you the numbers. A trawl of the parking websites also tells us that there are many facing PCNs for “stopping”.

The truth is that the driver did not see, understand nor accept the alleged terms. VCS may claim that generic signage is displayed around the roads but this does not meet the BPA Code of Practice rules, nor the requirements for consideration when forming an alleged contract.
In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park and any consequences for breach, as was found in a comparable camera-reliant car park in the case of Excel Parking Services Ltd v Martin Cutts, 2011.

The BPA Operational Requirements Section 18.1 and 18.2 states:
''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.
Entrance signs must follow some minimum general principles and be in 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.'' I do not expect PE to be able to produce any evidence that these signs comply with these Operational Requirements, nor with the specifics in Appendix B of the Code of Practice on Entrance Signage.


6.2 Traffic Signs Manual: Department of Transport
No stopping signs, if provided, were not compliant with Traffic Signs Manual 2013: Department of Transport : TSO
From the manual sign sizes
1.13 Warning signs are normally prescribed in five sizes. The normal minimum size is indicated in the diagrams, with alternative sizes in brackets. All sizes are in millimetres unless stated otherwise. Signs need to be of a size appropriate to the prevailing traffic speed on the road on which they are used. On roads with a 30 mph speed limit, the smallest prescribed size of warning triangle (normally 600 mm) is usually adequate.
1.15 ………..Conspicuity can also be increased by the use of yellow backing boards (see paras 1.32 to 1.34).
Speke Hall Avenue which is the road leading to the airport appears to be the same as any adopted road. There was no indication that this was a private road and that the Highway Code or Department of Transport signs would not apply. The signage and street furniture is the same as any road. The Department of Transport signs manual describes the size and type of sign which should be provided in various locations. The purpose of this requirement is to ensure that signs are readable when traffic is moving. The service road conforms to that convention except there were no signs of that type of quality referring to parking and stopping. It can be seen from the photographs enclosed with the PCN there are no traffic signs visible at the place where the alleged contravention took place.
Signs readable by moving traffic did not exist.
The driver saw no signs saying stopping was not permitted. The driver had found the directional signs confusing. He had followed signs to “pick up” and found that he had entered a car park. He knew he was half an hour late and that the passengers had already arrived.
The passengers had to wait some half hour. There was no road signage or airport signage to tell them where to wait and where they would be picked up from. They had half an hour to read signage.
The driver said he looked for a place where it was safe to load. The place he selected was quite safe.
There were no signs of this type on the road. There are many drivers who have been received PCN for stopping and had no understood they could not. VCS would be able to confirm the numbers but it is also possible to see the number by reading parking websites.
VCS has provided no diagram or plan showing the locations and descriptions of signs. The one sign that they have provided in the appeal process is printed on an A4 sheet. Its size is not given nor any locations.
The signage provided do not satisfy the Traffic Signs Manual nor is it compliant with the BPA Code of Practice and nor does it form a contract with the driver.
UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE
I contend that the signs and any core parking terms (VCS) are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])

7. No contract was entered into by the driver and / or the keeper of the vehicle
No Terms and Conditions were brought to the attention of the keeper and/or the driver, therefore, no contract was entered into and so the keeper cannot be held liable. Non of the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were satisfied.
This failure is also a reason to dismiss the PCN.
8. No genuine pre-estimate of loss
I believe that the amount of charge is disproportionate to the suggested loss incurred by VCS. Accordingly, the charge is not as described in paragraph 19 of the BPA's Code of Practice. There has been no description of the genuine pre-estimate of loss that VCS has suffered.
All of the tax-deductible running costs VCS has would exist regardless of whether any vehicle stopped on the road. I contend that there was no loss to VCS.

This failure is also a reason to dismiss the PCN.
9. Unfair terms of contract and an unenforceable penalty
I feel this charge is punitive, contravening the Unfair Contract Terms Act 1997. Furthermore under the Unfair Terms in Consumer Contracts Regulations 1999 a list of terms which may be regarded as unfair and includes 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’.
Also, Regulation 5(1) states:
‘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.’

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011), in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).
Finally, I believe VCS are in breach of the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR):

Schedule 2, paragraph 1:
...terms may be unfair if they have the object or effect of:

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

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.

UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket.
Private parking tickets unrelated to any genuine loss are unenforceable penalties, as was found in the Parking Eye v Smith case I have already mentioned and also in Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review decision by Circuit Judge, February 2011), and UKCPS v Murphy (April 2012).

In the case of Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd, Lord Dunedin offered as tests which might prove "helpful, or even conclusive":

"(A) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach..….

(B) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid ….. This though one of the most ancient instances is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A. promised to pay B. a sum of money on a certain day and did not do so, B. could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable ….. is probably more interesting than material.

(C) There is a presumption (but no more) that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

And in Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G,
discussing Dunlop:

"whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."

This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946.

And from the Office of Fair Trading, Guidance re Unfair Contract Terms:
''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

This failure is also a reason to dismiss the PCN.
10. Contract with the landowner – not compliant with the BPA code of practice and no legal status to offer parking or enforce tickets
VCS do not own these roads and are acting merely as agents for the owner/occupier. In my appeal to VCS a copy of the contract to operate between themselves and the landowner of ..., this they failed to do. Therefore, I do not believe that VCS has demonstrated a proprietary interest in the land and they have no legal standing to allege trespass or loss, if that is the basis of their charge. As shown in The Upper Tier Tax Tribunal case of VCS v HMRC 2012 in which the ruling was that Private Parking Companies cannot lawfully make an offer of parking, or levy charges, unless they have a proprietary interest in the land. This is binding on lower courts, including the Small Claims Court and has been ratified by an internal memo from the Ministry of Justice to all Courts in England and Wales.

I also requested the name and address details of the landowner of the airport again they failed to provide this information. I believe that there is no contract with the landowner that entitles VCS to levy this charge and therefore it has no authority to issue a Parking Charge Notice nor specifically to enforce the charge in its own name in any court. I require VCS to produce the actual contract - and not a witness statement or any other inadmissible piece of paper falling short of the contract.
I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

I therefore submit this charge should be dismissed.

Yours faithfully

Computersaysno

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