another VCS case - Robin Hood Airport

Kate1899

thank you. I've changed it a bit. Is this version better to send to POPLA ?

"
Dear POPLA Adjudicator

RE: POPLA code XXXXXX

Vehicle Registration: XXXXX
PPC: Vehicle Control Services Limited
PCN ref: XXXXXXX
Alleged Contravention Date: XX-Sep-2013
Date of notice: XX-Sep-2013
Alleged Contravention: Stopping on a Roadway where stopping is Prohibited.

I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge onthe following grounds and would ask that they are all considered.
I would like to appeal this notice on the following grounds:

1. Charge not a genuine pre-estimate of loss.

I do not believe that any damage, obstruction or material loss was incurred and that the charge levied is purely a fixed sum implemented in advance by VCS as a revenue-raiser. It does not represent a genuine pre-estimate of any loss following from the incident. VCS cannot argue that this charge is made up of tax-deductible business costs because these would exist even if no cars stopped and got a ticket that day. It is also unreasonable and unfair; an unenforceable penalty dressed up as an imaginary loss, and as such, it breaches the Unfair Terms in Consumer Contracts Regulations 1999. If VCS believes otherwise they must be able to show a full breakdown of the genuine pre-estimate of loss.
The BPA Code of Practice states:
“19.5 if the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable."
POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.

2. Signage notcompliant with the BPA code of practice and not forming a contract with adriver.

I believe the signs and any core terms VCS are relying upon were unclear in all respects. VCS needs to showPOPLA their evidence and signage map/photos which they might contend meet all the requirements I have listed below.There are no low-positioned, clear signs on entry to this road which would have communicated the terms & conditions of stopping there to a seated driver in moving traffic. 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. 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 idea that any driver would accept these terms to pay this charge knowingly is perverse and beyond credibility. 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 car park but this doesnot meet the BPA Code of Practice rules nor the requirements for consideration when forming an alleged contract.It is fact impossible to read the terms and conditions of the contract without stopping.
I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's first Annual POPLA Report 2013:
''Typically the motorist may have stopped on a double yellow line...of course, on the public highway this is generally permitted, although not on a red route where there is a clear red line. It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it.''

3. Not relevant land

Airport land is not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws.

4. Failure to identify the creditor.

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 creditoris ..... ”. The keeper is entitled to know the party with whom any purported contract was made. This they have failed to do and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of anycharge from the keeper.

5. No contract with landowner.

I believe there is no contract with the landowner/occupier that entitles them to levy these charges and therefore VCS Ltd has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to VCS Ltd to prove otherwise so I require that VCS Ltd produce a copy of their contract with the landowner, which must be BPA CoP compliant. This means specifically, that the contract must be dated before this parking event and show that VCS Ltd are granted rights to form contracts with drivers on site and to pursue their charges in the courts in their own name.

6. No standing to bring a claim to pursue this charge.

I believe VCS Ltd have no standing to support pursuing a charge at this site. 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 Ltd and the owner/occupier, containing nothing that VCS Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer. I challenge VCS Ltd to rebut this point in the light of two very recent small claims decisions about a parking operator with a similar contract. In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013. District Judge Jenkins dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and the landowner, and didn’t create any contractual relationship with motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred with the view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. I submit that this applies in my case as well, especially as it was also the case in VCS Ltd v Ibbotson, Case No. 1SE09849 on 16/5/2012, where District Judge McIlwaine found as fact that only the landowner can take the matter to court and not firms like VCS Ltd acting merely as their agents.

I request that my appeal is upheld and the charge dismissed.
Yours sincerely

"

Coupon-mad

Nearly done! I would just read it once more with fresh eyes if I were you and make sure there's nothing that doesn't make sense. I spotted:

''VCS may claim that generic signage is displayed around the car park''

...and yet it's not a car park, it's a road. So that point should be more like:

''VCS may claim that generic signage is displayed in this are of road but it is not marked as a red route or clearway and there is a lack of illuminated repeater signage facing oncoming traffic. So this does not meet the BPA Code of Practice rules nor...''

nigelbb

I would add another paragraph pointing out that POFA 2012 is only concerned with parking charges and that the alleged offence is nothing to do with parking or car parks. Here is the very first paragraph of Schedule 4 of POFA (my emphasis).

Introductory
1 (1) This Schedule applies where:
(a) the driver of a vehicle is required by virtue of
a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; and
(b) those charges have not been paid in full.

As this is not a charge for parking but for breaching another made up rule for their private road regarding stopping where stopping is not permitted then POFA & keeper liability cannot be invoked any more than if the offence was driving without lights or driving the wrong way round a one-way system.

Coupon-mad

That's true, nigelbb.

Kate1899

thank you very much for help and feedback. I'll send my POPLA appeal today. How long does it usually take to get decision ?

Coupon-mad

Six weeks at the moment but with Christmas in between, I suspect 8 weeks at a guess. You will receive a pile of tat evidence from the PPC first - among your Christmas cards - and then the decision is normally made By POPLA around a fortnight later.

Kate1899

Victory !!! Thank you very much for all help with my appeal. Of course Assesor has decided that appeal must be allowed. (NO GPEOL) :j This are the "Reasons for the Assessor’s Determination" :


On "DATE" at Robin Hood Airport, the appellant was issued with a
parking charge notice for breaching the terms and conditions of the parking
site.

It is the operator’s case that the appellant stopped her vehicle in a no
stopping area despite signage erected at the site to prohibit this. There is
photographic evidence to support that there was adequate signage at the
site to inform motorists of the parking terms and conditions. There is also
evidence from the operator’s automatic number plate recognition system
which shows the appellant’s vehicle stopped in a no stopping area.

The appellant has made a number of submissions, however, I will only
elaborate on the one submission that I am allowing this appeal on, namely
that the parking charge amount is not a genuine pre-estimate of loss.

The burden is on the operator to prove that the parking charge is a genuine
pre-estimate of loss. Although the operator has produced a breakdown of
costs incurred, these do not substantially amount to a genuine pre-estimate
of loss. I find that a large proportion of the costs listed by the operator do not
stem directly from the alleged breach and therefore cannot be included in
the breakdown of costs provided by the operator to establish a genuine preestimate
of loss. Therefore I am not satisfied that the operator has discharged
the burden.

In consideration of all the evidence before me, I find that the operator has
failed to prove that the parking charge amount was a genuine pre-estimate
of loss.


Accordingly, this appeal must be allowed.

Redx

excellent news , a happy new year for you then

please add it to the successful popla appeals sticky for posterity too

thanks

edit

see you have done this , so thanks once more

Hawkeye_86

Kate well done and congratulatons, my PCN was almost an identical one to yours and I have based my POPLA appeal on yours. So I now have my fingers crossed. I dispute the signage is adequate for people leaving the car park as there is only a small sign before the lay by impossible to read at night. Time will tell my appeal went in in early January

MissElle1982

Well done Kate. I've just received the same PCN today and am hoping your precedent will work for me too - fingers crossed, I'm posting tomorrow.