Robin Hood PCN [VCS] POPLA appeal.

Muddypaws11

Having received the usual PCN from Vehicle Control Services for stopping for 60 timed seconds [to wait for a partner lost in the car park to catch up] I put in quite heavy response which they've eventually responded to, and given me a POPLA no.
I'm already fighting some tickets on behalf of my partner in a different thread [many thanks for your support there folks], however this one is mine!:cool: I've read the advice constantly about putting up a POPLA appeal here before submitting it so I've drafted a letter [plagiarised shamelessly I'm afraid ] and wondered if it will suffice?



[FONT=&quot]Notice to Keeper [/FONT][FONT=&quot]VCXXXXXXX[/FONT]
[FONT=&quot]POPLA Verification Code [/FONT][FONT=&quot]XXXXXXXX[/FONT]
[FONT=&quot]Summary:[/FONT]

[FONT=&quot]On [/FONT][FONT=&quot]28/08/2013[/FONT][FONT=&quot] I was the registered keeper of a [/FONT][FONT=&quot]MG ZT T [/FONT][FONT=&quot]registration number [/FONT][FONT=&quot]XXXXXXX. [/FONT][FONT=&quot]On 02/10/13 I received a Parking Charge Notice (PCN)from Vehicle Control Services Ltd (VCS) for allegedly breaching car park terms and conditions of access to privately operated approach roads leading to Doncaster Sheffield Airport.[/FONT]

[FONT=&quot]On 04/10/13 I wrote a challenge to this notice, [a response dated 07/11/13 confirming receipt was received on the 08/10/13]. In that challenge letter I contested various points including : that the land in question was, in fact, ‘relevant land’ as defined by the Provision of Freedoms Act 2012 (POFA), which I believe it is not, and asked them to provide evidence to the contrary. I also pointed out that the Notice issued to the Keeper was defective as it did not specifically identify ‘the Creditor’ as required in paragraph 9(2) h of POFA and that the signage on entry to the privately operated roads was deficient and unclear.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The response letter dated 07/11/13 failed to address the points above in addition to others raised.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] I dispute the parking charge for the reasons set out below. Please note that, although I dispute the whole basis of the parking charge, my main concerns, as registered keeper, are:[/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]1) No genuine pre-estimate of loss[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
''[FONT=&quot]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.''[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]2) Whether the land in question is ‘relevant land’ as defined by POFA.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]If not, has VCS had any authority to obtain my (Registered Keeper)details from DVLA. In addition, I also believe that POFA only allows for Keeper liability in parking facilities and that this does not apply to ‘No Stopping’ zones.[/FONT]

[FONT=&quot]On Airport land no keeper liability generally applies at all, due to local byelaws taking precedence. All the land and surrounding approach roads are Airport-owned and covered by Byelaws (link removed for forum rules)[/FONT][FONT=&quot] [/FONT][FONT=&quot]and, as such, the Airport is not 'relevant land' under POFA. There is no registered keeper liability. VCS will need to provide evidence, substantiated by the Airport authorities, that this land is not covered by byelaws and that POFA does apply in ‘No Stopping’ zones if the Notice is to be [/FONT]
[FONT=&quot]POPLA Verification Code [/FONT][FONT=&quot]XXXXXXXXXX [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Cont. : pursued against myself as the registered keeper. As the keeper of the vehicle I decline, as is my right to name the driver(s). As the operator has neither named the driver nor provided evidence of who the driver was and has not provided any evidence that they are entitled to recover the charge from the Keeper, the charge should be dismissed. [/FONT]

[FONT=&quot]The operator should also be able to supply a full copy of the contract, acceptable in law, between them and the land owner which demonstrates their authority to pursue claims for damages on the approach roads.[/FONT][FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]3) [/FONT][FONT=&quot]Signage/Contract[/FONT][FONT=&quot].[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]VCS has sent a copy of the notices that they post within the area that the alleged ‘offence’ took place. This is useful as, firstly, a motorist proceeding normally into and through the area would have no chance of safely reading the content of such a complex sign without stopping and, secondly, it demonstrates that there are no specified Terms and Conditions displayed on them.[/FONT]

[FONT=&quot]The original PCN stated that it was issued for allegedly breaching car park terms and conditions of access to privately operated approach roads leading to Doncaster Sheffield/Robin Hood Airport. The driver did not see any contractual information (such as full Terms and Conditions) on any signs when entering [/FONT][FONT=&quot]the roads leading to the airport, presumably these are only available to read in the car parking areas situated at the end of the approach roads.[/FONT]

[FONT=&quot]In their response, VCS says “..it is trite law that a motorist choosing to enter and use private land for authorised uses, does so in full and tacit acceptance of the Terms and Conditions in operation. These Terms and Conditions are in operation from the moment a person enters onto private land.”[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The response goes on to say that ”..should the motorist breach these Terms and Conditions or commit trespass….we are entitled to seek damages from the motorist….as indicated on the signage…”[/FONT]
[FONT=&quot]
I do not believe that there was ever any form of contract in place (for instance, there were no readable terms and conditions, thus no acceptance or agreement) and therefore there was no breach.[/FONT][FONT=&quot][/FONT]

[FONT=&quot]I also require VCS to show that they have a BPA-compliant contract with the landowner [named as thus and requested in the letter dated 04/10/13 see point 4 below] at this site which specifically enables them to enforce parking tickets through the courts in their own name as creditor. In VCS v HMRC their typical contract failed in this regard so VCS will need to show POPLA that their contract, with this Airport specifically, is fully BPA compliant. This will require the actual contract being submitted to POPLA, not a vague witness statement which would not be admissible in court and cannot be checked against details/dates/relevance/signatory etc.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]4) That if the PCN issued to Keeper was ‘in Lieu’ of a Notice to Keeper it was defective in not specifically naming’ the Creditor’ as required by POFA.[/FONT]

[FONT=&quot]A specific flaw with the Notice issued is that it fails to include specific identification as to who 'the Creditor' may be. This is misleading and not compliant, in regards to paragraph 9(2)(h) of Schedule 4 of the POFA. Whilst the Notice has indicated that a payment is required to be made to VCS, there is no specific identification of the Creditor, who may, in law, maybe VCS [/FONT]
[FONT=&quot]POPLA Verification Code [/FONT][FONT=&quot]XXXXXXXXXXXXXX[/FONT]
[FONT=&quot]Cont: or some other party. The POFA requires a ‘Notice to Keeper’ to have words to the effect that 'The Creditor is….' and this Notice does not.[/FONT][FONT=&quot][/FONT]


Yours sincerely
Mr I. Rate.

Coupon-mad

In that challenge letter I contested various points including : that the land in question was, in fact, ‘relevant land’ as defined by the Provision of Freedoms Act 2012 (POFA)

should be

In that challenge letter I contested various points including : [STRIKE]that[/STRIKE] whether the land in question was, in fact, ‘relevant land’ as defined by the [STRIKE]Provision[/STRIKE] Protection of Freedoms Act 2012 (POFA)

And you have pointed out that VCS talk about 'trespass' and yet the charge is not for trespass at all, it's for allegedly 'breaching terms' so I would point that out as a major discrepancy in VCS' argument.

And you might like to plagiarise from this version I wrote last week which was about VCS where they'd used a spy camera on a van - is yours like that? Feel free to plagiarise any of this as this one was also an Airport no-stopping zone and most of it is relevant to you too:

https://forums.moneysavingexpert.com/discussion/comment/63815981#Comment_63815981

HTH

Muddypaws11

Thanks very much for that, I have amended as advised. Here is the amended draft:

[FONT=&quot]On [/FONT][FONT=&quot]28/08/2013[/FONT][FONT=&quot] I was the registered keeper of a [/FONT][FONT=&quot]MG ZT T [/FONT][FONT=&quot]registration number [/FONT][FONT=&quot]XXXXXX. [/FONT][FONT=&quot]On 02/10/13 I received a Parking Charge Notice (PCN) from Vehicle Control Services Ltd (VCS) for allegedly breaching car park terms and conditions of access to privately operated approach roads leading to Doncaster Sheffield Airport.[/FONT][FONT=&quot]

On 04/10/13 I wrote a challenge to this notice, [a response dated 07/11/13 confirming receipt was received on the 08/10/13]. In that challenge letter I contested various points including: whether the land in question was, in fact, ‘relevant land’ as defined by the Protection of Freedoms Act 2012 (POFA), which I believe it is not, and asked them to provide evidence to the contrary. I also pointed out that the Notice issued to the Keeper was defective as it did not specifically identify ‘the Creditor’ as required in paragraph 9(2) h of POFA and that the signage on entry to the privately operated roads was deficient and unclear.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The response letter dated 07/11/13 failed to address the points above in addition to others raised.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] I dispute the parking charge for the reasons set out below. Please note that, although I dispute the whole basis of the parking charge, my main concerns, as registered keeper, are:[/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]1) No genuine pre-estimate of loss[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]''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.''[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]2) Whether the land in question is ‘relevant land’ as defined by POFA.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]If not, has VCS had any authority to obtain my (Registered Keeper)details from DVLA. In addition, I also believe that POFA only allows for Keeper liability in parking facilities and that this does not apply to ‘No Stopping’ zones.[/FONT][FONT=&quot]

On Airport land no keeper liability generally applies at all, due to local byelaws taking precedence. All the land and surrounding approach roads are Airport-owned and covered by Byelaws (link removed for forum rules) and, as such, the Airport is not 'relevant land' under POFA. There is no registered keeper liability. VCS will need to provide evidence, substantiated by the Airport authorities, that this land is not covered by byelaws and that POFA does apply in ‘No Stopping’ zones if the Notice is to be pursued against myself as the registered keeper. As the keeper of the vehicle I decline, as is my right to name the driver(s). As the operator has neither named the driver nor provided evidence of who the driver was and has not provided any evidence that they are entitled to recover the charge from the Keeper, the charge should be dismissed.

The operator should also be able to supply a full copy of the contract, acceptable in law, between them and the land owner which demonstrates their authority to pursue claims for damages on the approach roads. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The driver has not been identified, VCS are claiming POFA 2012 registered keeper liability for this charge; the registered keeper is not liable for this charge as Doncaster Sheffield/Robin Hood 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.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]3) Signage/Contract.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]VCS has sent a copy of the notices that they post within the area that the alleged ‘offence’ took place. This is useful as, firstly, a motorist proceeding normally into and through the area would have no chance of safely reading the content of such a complex sign without stopping and, secondly, it demonstrates that there are no specified Terms and Conditions displayed on them.[/FONT][FONT=&quot] As it is necessary for the driver to stop their vehicle in order to read the terms and conditions before being able to consider them and whether to agree thereby breaching the terms and conditions the signs erected at this location are none compliant with the BPA code of practice.

The original PCN stated that it was issued for allegedly breaching car park terms and conditions of access to privately operated approach roads leading to Doncaster Sheffield/Robin Hood Airport. The driver did not see any contractual information (such as full Terms and Conditions) on any signs when entering the roads leading to the airport, presumably these are only available to read in the car parking areas situated at the end of the approach roads.

In their response, VCS says “..it is trite law that a motorist choosing to enter and use private land for authorised uses, does so in full and tacit acceptance of the Terms and Conditions in operation. These Terms and Conditions are in operation from the moment a person enters onto private land.”[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The response goes on to say that ”..should the motorist breach these Terms and Conditions or commit trespass….we are entitled to seek damages from the motorist….as indicated on the signage…”[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]VCS refer to “trespass” here yet the charge is nothing to do with trespass but for allegedly “breaching terms” which is another major discrepancy in VCS’ argument and is irrelevant.[/FONT]
[FONT=&quot]
I do not believe that there was ever any form of contract in place (for instance, there were no readable terms and conditions, thus no acceptance or agreement) and therefore there was no breach.[/FONT]
[FONT=&quot]
I also require VCS to show that they have a BPA-compliant contract with the landowner [named as thus and requested in the letter dated 04/10/13 see point 4 below] at this site which specifically enables them to enforce parking tickets through the courts in their own name as creditor. In VCS v HMRC their typical contract failed in this regard so VCS will need to show POPLA that their contract, with this Airport specifically, is fully BPA compliant. This will require the actual contract being submitted to POPLA, not a vague witness statement which would not be admissible in court and cannot be checked against details/dates/relevance/signatory etc. As VCS are not the owners of this land 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.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]4) That if the PCN issued to Keeper was ‘in Lieu’ of a Notice to Keeper it was defective in not specifically naming’ the Creditor’ as required by POFA.

A specific flaw with the Notice issued is that it fails to include specific identification as to who 'the Creditor' may be. This is misleading and not compliant, in regards to paragraph 9(2)(h) of Schedule 4 of the POFA. Whilst the Notice has indicated that a payment is required to be made to VCS, there is no specific identification of the Creditor, who may, in law, maybe VCS [/FONT]
[FONT=&quot]some other party. The POFA requires a ‘Notice to Keeper’ to have words to the effect that 'The Creditor is….' and this Notice does not.[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]5) [/FONT][FONT=&quot]Non-compliant ANPR 'hidden camera van' system at this location which is not a car park[/FONT][FONT=&quot]
The BPA code of practice contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, the secret camera van does not operate in a reasonable, consistent and transparent manner and I contend that VCS have failed to meet the requirements of all of the above points in the BPA Code of Practice. They will need to show evidence to the contrary on every point, and explain how this hidden camera van can be compliant when this is not a car park, it is a road, and there is no opportunity for drivers in moving traffic to be informed that this technology is in use and what VCS will use the data captured by ANPR cameras for. VCS have breached the BPA Code of Practice as regards the use of a non-compliant ANPR system being merely a van fitted with a hidden camera, patrolling land which is not a 'car park' and neither 'managing, enforcing nor controlling parking'.[/FONT]

Coupon-mad

That looks fine to be sent, let us know how you get on in January when you get your decision!

Guys_Dad

Double check the dates quoted. One at least is wrong.

Muddypaws11

Guys_Dad wrote: »

Double check the dates quoted. One at least is wrong.

Thanks for that, I've had a read through again and am afraid I can't see the wood for the trees!
I've had a look at my dates a couple of times [I'm presuming this is where the error lies] and checked the dates quoted for the consumer contracts regulations (1999) and POFA 2012.
Any clues greatly appreciated!

Regards, Aaron.

Coupon-mad

[a response dated 07/11/13 confirming receipt was received on the 08/10/13].

The time-travelling response? I know it's the Dr Who 50th Anniversary & all but...!

Muddypaws11

Thanks again folks. I amended the draft and then went to the post office today to send it recorded delivery, [I always prefer to do things hard copy]. As he put the details into the system the guy behind the desk informed me that the post code was incorrect and should have had a number where there is a letter. I had a look at the POPLA website on my phone and confirmed I had the right postcode even showing the Post Office guy. He tried again but again the "system" informed him it was invalid [incorrect postcode].
He sent it anyway as the rest of the address was there [I had also checked to see if I could have it signed for as it was a PO box address and informed that I could].
Just an interesting aside, now I'll just have to wait!

Muddypaws11

Just an update on this. I received a letter today from POPLA who state that they have ALLOWED my appeal and the operator should cancel the pcn forthwith ! Very happy, I'll get the response scanned and posted up as soon as I can. Thanks again to everyone for the advice and help.

Stroma

Well done to you, do you mind posting up the wording by the assessor