Liverpool airport PCN - help please

Folkiedave

They are (as we might say) being disingenuous.

This from Steve Clark, Head of Operations. BPA Ltd. Dated July this year.

(I understand that David Metcalf now handles this)

Dear Mr. [removed]

At the request of the DVLA I am writing in response to your recent query with them in relation to a statement made by one of our members, Excel Parking Services.

I am informed that Excel told you that only the driver can appeal against a Parking Charge Notice issued on screen.

On the subject of who can appeal to an operator – the driver, the keeper or both. I would make the following comments;


v I would refer you to Clause 22.14 of the Code which states ‘Drivers and Keepers may appeal against a parking charge to POPLA’ – I contend that this clause lays out the intentions of the Code as far as appeals are concerned – namely that both drivers and keepers can appeal.

v There can be no doubt that either the driver or the vehicle keeper can appeal after a Notice to Keeper has been issued.

v As far as the Notice to Driver is concerned, things are more complicated. After a Notice to Driver has been issued, I would contend that the vehicle keeper would only be able to appeal against it if he is either the driver or knows who the driver is. As in order to appeal, he would need to be aware of the circumstances surrounding the issue of the Notice to Driver – he can’t do this if he does not know the identity of the driver.

v To say that only the driver can appeal is not therefore correct and I have asked Excel to cease stating this on their paperwork with immediate effect.

I trust that this answers the question that you have raised and if you require any further information please don’t hesitate to make contact.

Kind regards

Steve Clark
Head of Operational Services"

It seems to me that Excel have simply substituted the word "Motorist" for the word "driver".

Strong complaint to Liz Symonds at the DVLA and point out they have been warned about this before; that they are continuing to mislead motorists; that it doesn't seem to matter what the BPA Code of Practice says, or what the Head of BPA Ltd says - they simply ignore it.

Elizabeth.Symons@dvla.gsi.gov.uk

Umkomaas

MrsG (for information) - VCS and Excel both owned by Simon Renshaw-Smith, so effectively one and the same.

Umkomaas

MrsG - you might want to have a look at this from PePiPoo, it's been going on for some months now, but the most recent posts will be of real interest to you.

http://forums.pepipoo.com/index.php?showtopic=75758&st=0

MrsG1980

Umkomaas wrote: »

MrsG - you might want to have a look at this from PePiPoo, it's been going on for some months now, but the most recent posts will be of real interest to you.

http://forums.pepipoo.com/index.php?showtopic=75758&st=0

Thanks, thats brilliant! did he really sent the POPLA letter with the small print on the top about the £30 charge?! lol
So hopefully when I get my POPLA code I can use that letter but just tweak it a little?

MrsG1980

Emailed my appeal on the 15/10 and got the usual auto response saying that they would not process my appeal request if it did not contain the following.....(and that it was needed within 7 days of this email)

The PARKING NOTICE SERIAL NUMBER This can be found in the top right hand corner of the Notice and will be prefixed, SERIAL No. VC/____________.


2) A FULL POSTAL ADDRESS that we can correspond with, as all decisions are conveyed in a letter to the motorist.



3) The FULL NAME of the motorist.

Be advised – WE ARE UNABLE TO PROCESS YOUR APPEAL/CHALLENGE WITHOUT THE PROVISION OF THE ABOVE REQUESTED INFORMATION – A PARKING NOTICE SERIAL NUMBER AND THE FULL NAME AND ADDRESS OF THE MOTORIST.

If you have already provided all relevant information, then please accept our apologies and ignore this email, as we will be dealing with your appeal/challenge and notification of the outcome will be sent to you in due course.



So So I held out for a few days in-case they processed my appeal with the info they had, and then when I heard nothing I replied on the 7th day after the email..

Dear Sir/Madam

In reply to your last email -

1) My Parking Note Serial Number is **********

2)My full postal address is -**************************

3) Full name of the motorist.

In accordance with POPLA regulations, the driver has instructed the keeper to respond. The Registered Keeper is Myself and I am responding.

Who can appeal to POPLA?

POPLA may only consider appeals against a parking charge notice issued on or after the 1 October 2012 by a member of an Accredited Trade Association (ATA). At present, the only ATA in place is the Approved Operator Scheme (AOS) administered by the British Parking Association (BPA).

For more information on the BPA and the AOS, including a list of AOS members, please go to the BPA website Opens in a new window.

Anyone can appeal such a parking charge notice providing they follow the process below. If you want someone to appeal on your behalf, such as a family member or friend, they can do so but there can only be one appeal for any one parking charge notice.

I decline your invitation to name the driver as it is my right to do so.
You now have all the information you need to process my appeal. You have to respond to me and either cancel the Parking Charge Notice or give me a POPLA code in your rejection letter.

I await your response.


So that was the 21/10 and I have still heard nothing? I am worried that they have not accepted my appeal as I didn't provide the full name of the motorist? Should I contact them?

Thanks in advance x

Coupon-mad

You have done all you can and more. You didn't even need to send that response but I like it!

Calm down, they have 35 days to respond (the auto-response was their acknowledgement) and you KNOW they will send you a rejection so there's no need to hold your breath. It's just a fishing exercise by you to get the Golden Ticket of a POPLA code.

MrsG1980

Thanks very much for the reply coupon-mad. I will update when I hear anything further x

bod1467

" the driver has instructed the keeper to respond "

You didn't even need to say that.

MrsG1980

Right, I have today received my appeal rejection letter and my popla code :j.
The letter basically said "rejected because you failed to provide a full name and address of the driver, so now we are within our rights to recover from the registered keeper under the Protection of Freedoms Act 2012, and because the driver stopped on the roadway where they could have caused obstruction to other drivers. Please be advised that our signage located throughout the area clearly state "no stopping at any time"

I am actually excited to get going on my popla appeal now!! :rotfl:
I have been reading some of the other forums and found a winning popla appeal (by Lynnzer on pepipoo back in march)

Shall I use this and tweak it a little?......Thanks in advance

Contractual charge notification re POPLA appeal
By reading the contents of this appeal letter you agree to a contractual arrangement for payment of £30 for educational purposes payable within 28 days. Failure to pay that amount will result in an extra charge of £15 for administrative purposes


My Address went here
xxxxx
xxxxx
xxxx
Wxxx xxx

I refer to POPLA appeal code xxxxxxx

Please be advised that I challenge the findings of VCS Ltd on the basis that the parking charge exceeded the appropriate amount.

1. The land on which VCS operates is not land that it owns itself. I refer you to VCS v HMRC where it was found that without landowner rights of possession or occupation they cannot make a contract with a driver using the facility. I do not believe VCS has any such authority and put them to proof of that specific point.

2. No contract was made between the driver and VCS.
a. To form a contract, given that they may not have rights to do so in any case, they would need to fulfil the law of contract. This would require the passage of goods or services from VCS to the driver in return for payment. No goods or services were offered or even negotiated.
b. Unless VCS can show what goods or services were offered then the law of contract should be found to have not been satisfied.
c. The invoice presented to myself by VCS did not have any mention of VAT upon it. It is a legal requirement for any invoice to have this detail, where the issuing company has a VAT registration. Since VCS claim that this matter is being dealt with as a one of contract, ie for a service, that makes the payment VAT-able in accordance with current legislation, and in confirmation of the findings in the case against it by HMRC (VCS v HMRC). If it has no mention of VAT upon it, then it must relate to a penalty, which of course is not in accordance with the BPA Code of Practice and cannot be independently pursued as a contractual charge. I refer to the addendum at the bottom of the page direct from HMRC which explains this situation.

3. I put it to VCS to prove that the action is for a breach of contract where I will need confirmation and proof of payment of VAT in respect of these tickets, or whether in fact it is an amount of penalty for non compliance with some condition of landowner facility use.

4. Given that the area shown in relation of this charge does not have a payment option within it, or for the use of the land and roads surrounding it, then any charge at all would be grossly exorbitant and far exceed any potential landowner loss suffered. This is my appeal point. The charge exceeds the appropriate amount, ie £nil.
a. In the case of VCS operating as an agent for the landowner, only the landowner has the right to reimbursement for any financial loss or compensation for any activity which has acted to the detriment of that landowner. VCS has suffered no loss whatsoever so cannot claim for any amount by consideration of the civil remedy for an act of trespass, which should be seen as the relevant actionable offence.

5. Law of Agency. I refer you to Halsbury's Laws of England/Agency (volume 1 (2008) 5th edition)/1. Nature and formation/(1) The relation of agency/1. Nature of the relation of agency.
VCS has issued the ticket with its own name on it. All of the correspondence they have sent is in their own name. The payment requested was to be made direct to themselves at their registered address. They are acting entirely for themselves, albeit with a right of access to the land to operate in accordance with the landowners wishes. The law of agency says that in these circumstances the agent is acting outside an agency agreement. That being the case, the relation of agency cannot have arisen.

REVENUE & CUSTOMS BRIEF 57/08 VAT – Excess charges in non-local authority car parks.
The Brief explains HMRC’s revised policy on excess charges and other penalties levied in non-local authority car parks. Following the Bristol City Council case, HMRC accepted that excess charges made in local authority car parks were outside the scope of VAT.
However this treatment was only in respect of local authorities. HMRC have reconsidered their policy, accepting the Bristol City Council decision was based on the contractual relationship between operator and customer, and as such, the VAT treatment of excess charges should be the same for all operators. Therefore, certain excess charges made by non-local authority operators which were previously considered to be consideration for a taxable supply of parking are now regarded as outside the scope of VAT.

The penalty charges that will no longer be subject to VAT are those that are levied where
a driver is in breach of the terms of the contract with the car park operator. The most common situations where a driver may be in breach of the contract are:
• no parking ticket on display
• underpayment
• overstaying purchased parking time
• returning within a specified time
• parking outside marked bays
• parking in bays set aside for disabled drivers or parents with children

The Brief goes on to say that where the terms and conditions make it clear that the driver can continue to use the facilities after a set period upon payment of a further amount without being in breach of the contract – e.g. no charge for an initial 3 hours of parking, but £70 becomes due if that period is exceeded - then the payment will be consideration for use of the facilities and subject to VAT.
None of the situations described above in the bullet points refer to the reason for my own ticket so the default situation is that the payment is in consideration for use of the facilities and subject to VAT. Since that would make the amount one of a punitive nature the law of contract does not apply thus any charge would need to be in the form of financial recompense for any loss sustained by the landowner, which of course is nil.
In consideration of the true legal situation in respect of the terminology applied to the charge, ie whether it's a contract or one for trespass, it is important to also see which legislative track best describes that position. Since HMRC have already made it known in their brief above, supported by their Upper Tier Tax Tribunal case against VCS, that an invoice for a contract of service is vat-able then any non disclosure of that fact makes it a penalty which is non vat-able, and of course prohibited by the BPA Code of Practice.
________________________________________________________________________________
___________________________________________________
Since you have read this far you may have overlooked the fact that you have agreed to a payment of a contractual charge. You had an opportunity to discontinue the reading of this appeal thus rejecting the contractual basis made at the top of the page. This is exactly like the charge placed on drivers where a supposed, and totally ridiculous supposition of a contract being formed by driving past a sign on a roadside. As I am not VAT registered I can't send a VAT invoice.

Yours sincerely

Mrs. xxxxx

Coupon-mad

I wouldn't use an appeal from that far back! And on pepipoo one POPLA appeal was lost recently with a bit of misguided wording (and some input from Lynnzer and it was a VCS case) when IMHO it should have been argued using the points we know win at POPLA.

Look at newer examples, this is from the sticky thread I started called 'newbies...read this now!':

POPLA = Parking on Private Land Appeals (the second stage 'independent' appeal service which is applicable in England/Wales ONLY).
How to win at POPLA (2013 information). POPLA decisions (do not start reading there at page 1 - read back from the most recent at the end, and learn!).

Also just to add I am at work but recall I linked a suitable POPLA appeal for an Airport/VCS for someone only yesterday...read my recent posts by clicking my username and you should find a thread about VCS/Airport where I linked it. Think it was Liverpool as well (trouble is it may have been on pepipoo where I post as SchoolRunMum!). If you haven't found that one to copy from by this evening I will try to find it if you bump this thread with a reply.