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VCS Appeal rejected. POPLA code received. Please advise?
shazbob-0112
Posts: 2 Newbie
Hi all,
After taking your advice, I have drafted the following POPLA appeal, but like so many before me, I don't wish to be the first to fail.
Please could I ask aanyone with the time and patience to read through this and let me know your thoughts?
(By the way, it's not ALL my own work!)
Dear POPLA,
With reference to verification code: ****
As the registered keeper of vehicle ****, I would like my appeal to be considered on the following grounds:
1) Amount demanded is a penalty and not a genuine pre estimate of loss.
2)Not relevant land under POFA 2012: no registered keeper liability.
3)No landowner contract nor legal standing to frm contract/s or charge drivers.
4)No contract with driver.
5)Misleading and unclear signage.
6)The alleged contravention did not take place.
7)Non-compliant ANPR camera vehicle at this location which is not a car park.
8) Mis-representation of time of alleged contravention.
9) Incorrect response to original appeal
1) The amount demanded is a penalty and not a genuine pre-estimate of loss:
The parking charge does not represent a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. Parking charges cannot include business costs which would occur whether or not the alleged contravention took place. The amount claimed is excessive and is being enforced as a penalty for allegedly stopping. As the operator is alleging a "failure to comply" yet cannot show this as a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which renders the charge unenforceable.
2) Not relevant land under POFA 2012: No registered keeper liability.
The driver of the vehicle has not been identified, yet the operator is claiming POFA 2012 registered keeper liability for this charge.The registered keeper is not liable for this charge as Humberside Airport is designated as an airport by the Secretary of State and therefore roads within the airport are subject to airport byelaws, therefore POFA 2012 does not apply. 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 byelaws.
3)No landowner contract nor legal standing to form contract/s or charge drivers.
As the operator is not the owner of this land and as such they cannot form a contract wiith the driver, I wish the operator 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. I believe there is no contract with the landowner that gives the operator the legal standing to levy these charges nor pursue them in the courts in their own name. This was shown to be the case by District Judge Mcllwaine in VCS v Ibbotson, case No 1SE0984916.5.2012 (transcript in the public domain). So as regards the strict requirements rgarding the scope and wording of landowner contracts, the operator has breached the BPA Code of Practice Section 7 and failed to demonstrate thier legal standing, which renders this charge unenforceable.
4) No contract with driver.
If a contract is to be formed, upon entering the site a driver must be able to read, understand and agree to the terms and conditions (See misleading and unclear signage,below). A driver could not stop in order to read the signs as they enter the road as by doing so they would block the road and the entry to the land from the main carraigeway. This is to say that even if a driver of a moving vehicle was able to slow the vehicle to a suitable speed of which to read, understand and agree to the terms and conditions stipulated on signage, the driver would then be contravening the highway code by not driving in accordance with the road conditions ans relative speed of the highway and would potentially cause other road users to take avoidance action. To do this is to deliberately obstruct the outlying highway which is controlled and regulated by the Road Traffic Regulations Act 1984 and would therefore be commiting an offence under the RTRA 1984.
5)Misleading and unclear signage.
The alleged contravention is "Stopping on a roadway where stoppping is prohibited" which is a mislleading term because of it's similarity to the Highways Agency term "urban clearway". If the operator intend this apparent private road to be treated by drivers as an urban clearway then the signs, road markings and terms used must be compliant wiith the TRSGD2002 or they will be misleading and confusing to drivers. The signs at this location do not comply with road traffic regulations or their permitted variations and as such are misleading. Any repeater signs in this areas do not face the oncoming traffic and are sporadically placed if at all. This means these signs are unable to be seen by a driver and certainly cannot be seen without stopping and therfore so not comply with the BPA code pf practice.
The operator is required to show evidence to the contrary.
It must also be noted that the roads that fall within this land appear to be marked in replicance of the markings used on the outlying highways which are controlled and marked in accordance with the Road Traffic Regulations Act 1984.
It is therefore expected that to identify road marking instruuctions and then to read understand and agree to the terms and conditions displayed, would cause an unecessary and unsafe confusion to the driver of a vehicle and would then require the driver to eiither be forced to stop to identify the correct action, or to take alternative action and leave the land in question. It is also reasonable to expect the operator to prove that there can be no misinterpretation of the terms and conditions of the land in question by providing evidence of signage indicating that road markings on this land do not represent any form of instruction or replication of those defined in the highway code Sect 238 that states: "You MUST NOT wait or park on yellow lines during the times of operation shown on nearby time plates (or zone entry signs if in a Controlled Parking Zone)". As there are no time plates on or around the land in question, I request prooof that the operator made clear indication that there were time restrictions on stopping on the roadway and that these time restrictions can be clearly seen from a moving vehicle.
I also request that the operator provide proof that the placement of yellow road markings without clear time restrictions and the alleged offence of "Stopping on a road where stopping is prohibited" is NOT a contradiction of the instruction of yellow road markings but is instead an incorrect interpretation of red road markings which would indicate a "No stopping at any time" restriction.
I would draw the assessor's attention to the "No Stopping Zones" section of the Chief Adjudicator's first Annual POPLA Report 2013: "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 size as to be read by a motoorist 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."
6) The alleged contravention did not take place.
The operator has provided evidential photographs (2) which allegedly show the vehicle to be stationary. In fact wiithin the first photograph, the vehicle is displaying rear brake lights, indicating NOT that the vehicle is stopped but that it is braking/slowing. In the second photograph, the vehicle can be seen in a different position relative to the camera poosition, indicating that the vehicle is stil moving forward and across the viewfinder of the camera from right to left. This can be easily seen when looking at relative position of the rear right bumper to the lampost obscuring the rear of the vehicle.
I also draw the attention of the Adjudicator to the shadow on the left hand side of the vehicle that does not appear within the first photograph, with the shadow being at least halfway acrossthe left side of the vehicle in the second photograph (a distance of about 4 feet) thus indicating that either the vehicle is still moving forward or that the sun has moved around relative to the position of the vehicle. As the photographs have allegedly been taken 1 minute apart, I request that the operator proves that the sun moved this distance relative to both the position of the Earth and the vehicle within this time therefore indicating that the car was in a stationary position.
Further to this point, I respectfully draw the attention of the Adjuicator to the position of the camera that took the photographs of the allleged offence, and in particular draw attention to the fact that in order to establish an object to be either stationary or moving in a forward or rear direction, the camera has to be positioned laterally to the object in order to provide longitudinal reference. It is therfore my request that the operator prove that the vehicle was "stopped" as alleged and not in fact moving. I request that this is proven with lateral measurement of the alleged "stopped" vehicle and that a comparison can be clearly made between this and the time lapsed between image capture.
I also request proof that the operator can categorically measure longitudinal movement from the position of appproximately 5 degrees to the rear left of the vehicle with a distance of approximately 60 metres between the camera and the vehicle.
7)Non-compliant ANPR camera vehicle at this location which is not a car park.
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 transpparent manner. Your siigns at the car park must telll 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 camera van does not operate in a reasonable, consistent and transparent manner and I contend that the operator has failed to meet the requirements of all of the above points in the BPA Code of Practice. I request that the operator shows 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 the operator will use the data captured by ANPR cameras for. The operator has 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'.
8) Misrepresentation of time of Alleged Contravention.
The operator has provided 2 photographs of the vehicle in support of the alleged contravention. The first photoograph has been identified on the PCN as being taken at "TIME: 14:20:00". The second phootograph has been identified on the PCN as being taken at "TIME: 14:21:00". The actual photographs provided as evidence show the timestamp of "14:21:36" and "14:21:48" respectively. The operator has already been asked to provide legislative reason for this misrepresentation, however the operator has not responded to this part of the original appeal. I therefore request the operator provides the Adjudicator with legislative reason for this misrepresentation that can be considered as "reasonable" in the issuing and seeking payment of the PCN.
9) Incorrect Response to original appeal.
In the operator's response to the orginal appeal, the operator has stated " Please find enclosed a photograph of the Terms and Conditions which you contravened by not displaying a vaild Pay and Display Ticket". I therefore request that this appeal is upheld as the operator has not only failed to provide a response to each point, but has also then alleged that a further contravention has occurred outwith the original PCN.
The material fact that the PCN was issued due to "Stopping on a roadway where stopping is prohibited" now brings into question the professional conduct to which the operator is working and indicates a lack of willingness to deliver a professional service and bring the industry into disrepute for it's failure to take any appeal against such allegations seriously.
After taking your advice, I have drafted the following POPLA appeal, but like so many before me, I don't wish to be the first to fail.
Please could I ask aanyone with the time and patience to read through this and let me know your thoughts?
(By the way, it's not ALL my own work!)
Dear POPLA,
With reference to verification code: ****
As the registered keeper of vehicle ****, I would like my appeal to be considered on the following grounds:
1) Amount demanded is a penalty and not a genuine pre estimate of loss.
2)Not relevant land under POFA 2012: no registered keeper liability.
3)No landowner contract nor legal standing to frm contract/s or charge drivers.
4)No contract with driver.
5)Misleading and unclear signage.
6)The alleged contravention did not take place.
7)Non-compliant ANPR camera vehicle at this location which is not a car park.
8) Mis-representation of time of alleged contravention.
9) Incorrect response to original appeal
1) The amount demanded is a penalty and not a genuine pre-estimate of loss:
The parking charge does not represent a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. Parking charges cannot include business costs which would occur whether or not the alleged contravention took place. The amount claimed is excessive and is being enforced as a penalty for allegedly stopping. As the operator is alleging a "failure to comply" yet cannot show this as a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which renders the charge unenforceable.
2) Not relevant land under POFA 2012: No registered keeper liability.
The driver of the vehicle has not been identified, yet the operator is claiming POFA 2012 registered keeper liability for this charge.The registered keeper is not liable for this charge as Humberside Airport is designated as an airport by the Secretary of State and therefore roads within the airport are subject to airport byelaws, therefore POFA 2012 does not apply. 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 byelaws.
3)No landowner contract nor legal standing to form contract/s or charge drivers.
As the operator is not the owner of this land and as such they cannot form a contract wiith the driver, I wish the operator 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. I believe there is no contract with the landowner that gives the operator the legal standing to levy these charges nor pursue them in the courts in their own name. This was shown to be the case by District Judge Mcllwaine in VCS v Ibbotson, case No 1SE0984916.5.2012 (transcript in the public domain). So as regards the strict requirements rgarding the scope and wording of landowner contracts, the operator has breached the BPA Code of Practice Section 7 and failed to demonstrate thier legal standing, which renders this charge unenforceable.
4) No contract with driver.
If a contract is to be formed, upon entering the site a driver must be able to read, understand and agree to the terms and conditions (See misleading and unclear signage,below). A driver could not stop in order to read the signs as they enter the road as by doing so they would block the road and the entry to the land from the main carraigeway. This is to say that even if a driver of a moving vehicle was able to slow the vehicle to a suitable speed of which to read, understand and agree to the terms and conditions stipulated on signage, the driver would then be contravening the highway code by not driving in accordance with the road conditions ans relative speed of the highway and would potentially cause other road users to take avoidance action. To do this is to deliberately obstruct the outlying highway which is controlled and regulated by the Road Traffic Regulations Act 1984 and would therefore be commiting an offence under the RTRA 1984.
5)Misleading and unclear signage.
The alleged contravention is "Stopping on a roadway where stoppping is prohibited" which is a mislleading term because of it's similarity to the Highways Agency term "urban clearway". If the operator intend this apparent private road to be treated by drivers as an urban clearway then the signs, road markings and terms used must be compliant wiith the TRSGD2002 or they will be misleading and confusing to drivers. The signs at this location do not comply with road traffic regulations or their permitted variations and as such are misleading. Any repeater signs in this areas do not face the oncoming traffic and are sporadically placed if at all. This means these signs are unable to be seen by a driver and certainly cannot be seen without stopping and therfore so not comply with the BPA code pf practice.
The operator is required to show evidence to the contrary.
It must also be noted that the roads that fall within this land appear to be marked in replicance of the markings used on the outlying highways which are controlled and marked in accordance with the Road Traffic Regulations Act 1984.
It is therefore expected that to identify road marking instruuctions and then to read understand and agree to the terms and conditions displayed, would cause an unecessary and unsafe confusion to the driver of a vehicle and would then require the driver to eiither be forced to stop to identify the correct action, or to take alternative action and leave the land in question. It is also reasonable to expect the operator to prove that there can be no misinterpretation of the terms and conditions of the land in question by providing evidence of signage indicating that road markings on this land do not represent any form of instruction or replication of those defined in the highway code Sect 238 that states: "You MUST NOT wait or park on yellow lines during the times of operation shown on nearby time plates (or zone entry signs if in a Controlled Parking Zone)". As there are no time plates on or around the land in question, I request prooof that the operator made clear indication that there were time restrictions on stopping on the roadway and that these time restrictions can be clearly seen from a moving vehicle.
I also request that the operator provide proof that the placement of yellow road markings without clear time restrictions and the alleged offence of "Stopping on a road where stopping is prohibited" is NOT a contradiction of the instruction of yellow road markings but is instead an incorrect interpretation of red road markings which would indicate a "No stopping at any time" restriction.
I would draw the assessor's attention to the "No Stopping Zones" section of the Chief Adjudicator's first Annual POPLA Report 2013: "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 size as to be read by a motoorist 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."
6) The alleged contravention did not take place.
The operator has provided evidential photographs (2) which allegedly show the vehicle to be stationary. In fact wiithin the first photograph, the vehicle is displaying rear brake lights, indicating NOT that the vehicle is stopped but that it is braking/slowing. In the second photograph, the vehicle can be seen in a different position relative to the camera poosition, indicating that the vehicle is stil moving forward and across the viewfinder of the camera from right to left. This can be easily seen when looking at relative position of the rear right bumper to the lampost obscuring the rear of the vehicle.
I also draw the attention of the Adjudicator to the shadow on the left hand side of the vehicle that does not appear within the first photograph, with the shadow being at least halfway acrossthe left side of the vehicle in the second photograph (a distance of about 4 feet) thus indicating that either the vehicle is still moving forward or that the sun has moved around relative to the position of the vehicle. As the photographs have allegedly been taken 1 minute apart, I request that the operator proves that the sun moved this distance relative to both the position of the Earth and the vehicle within this time therefore indicating that the car was in a stationary position.
Further to this point, I respectfully draw the attention of the Adjuicator to the position of the camera that took the photographs of the allleged offence, and in particular draw attention to the fact that in order to establish an object to be either stationary or moving in a forward or rear direction, the camera has to be positioned laterally to the object in order to provide longitudinal reference. It is therfore my request that the operator prove that the vehicle was "stopped" as alleged and not in fact moving. I request that this is proven with lateral measurement of the alleged "stopped" vehicle and that a comparison can be clearly made between this and the time lapsed between image capture.
I also request proof that the operator can categorically measure longitudinal movement from the position of appproximately 5 degrees to the rear left of the vehicle with a distance of approximately 60 metres between the camera and the vehicle.
7)Non-compliant ANPR camera vehicle at this location which is not a car park.
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 transpparent manner. Your siigns at the car park must telll 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 camera van does not operate in a reasonable, consistent and transparent manner and I contend that the operator has failed to meet the requirements of all of the above points in the BPA Code of Practice. I request that the operator shows 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 the operator will use the data captured by ANPR cameras for. The operator has 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'.
8) Misrepresentation of time of Alleged Contravention.
The operator has provided 2 photographs of the vehicle in support of the alleged contravention. The first photoograph has been identified on the PCN as being taken at "TIME: 14:20:00". The second phootograph has been identified on the PCN as being taken at "TIME: 14:21:00". The actual photographs provided as evidence show the timestamp of "14:21:36" and "14:21:48" respectively. The operator has already been asked to provide legislative reason for this misrepresentation, however the operator has not responded to this part of the original appeal. I therefore request the operator provides the Adjudicator with legislative reason for this misrepresentation that can be considered as "reasonable" in the issuing and seeking payment of the PCN.
9) Incorrect Response to original appeal.
In the operator's response to the orginal appeal, the operator has stated " Please find enclosed a photograph of the Terms and Conditions which you contravened by not displaying a vaild Pay and Display Ticket". I therefore request that this appeal is upheld as the operator has not only failed to provide a response to each point, but has also then alleged that a further contravention has occurred outwith the original PCN.
The material fact that the PCN was issued due to "Stopping on a roadway where stopping is prohibited" now brings into question the professional conduct to which the operator is working and indicates a lack of willingness to deliver a professional service and bring the industry into disrepute for it's failure to take any appeal against such allegations seriously.
0
Comments
-
Can you edit your post to space things out a bit please? At the moment it's just a wall of text.
Also, make a numbered list of your appeal points at the top, then use those same numbers against the details of each appeal point. Put in bold the appeal points and also any text where you put the operator to strict proof etc. i.e. where you're demanding that the PPC disprove the appeal point you're making.0 -
They have provided POPLA code for appeal but I was wondering if anyone could provide any further advice or at least review the appeal to provide some pointers as I firmly believe this PCN was issued unfairly.
https://forums.moneysavingexpert.com/discussion/comment/63815981#Comment_63815981
Use any of the above, whole sentences if you want, but try not to copy it verbatim especially as not everything will be the same!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Many thanks to all for the comments and advice.
Please can I ask that anyone with time and patience has a read through my draft for POPLA appeal?
I'm afraid I edited my original post rather than stick the draft at the end as I didn't want anyone who had already read it to not take note!!
This means my draft is at the top of this thread.
I'd be very greatful for any advice before I kick this one to POPLA.
Many thanks
SHAZBOB0 -
it certainly looks good but I am no expert
I do not wish to nitpick but there are quite a few spelling mistakes in it for some reason , so maybe run it through a spellchecker before submission to keep up the professionalism
regards0 -
It is nearly there! I saw 'mislleading' as a typo for starters.
And I would remove this bit as it isn't really relevant:
It is also reasonable to expect the operator to prove that there can be no misinterpretation of the terms and conditions of the land in question by providing evidence of signage indicating that road markings on this land do not represent any form of instruction or replication of those defined in the highway code Sect 238 that states: "You MUST NOT wait or park on yellow lines during the times of operation shown on nearby time plates (or zone entry signs if in a Controlled Parking Zone)".
And make the signage paragraph clearer that there are no 'repeater signs' facing oncoming traffic; after one sign which is unreadable at a busy entrance junction in moving traffic, any signage thereafter faces the kerbs along these approach roads which is not suitable for a no-stopping zone. Should be repeated clearway signs facing the traffic at regular intervals.
See johnb80's thread here and post #5 about the signage flaws:
https://forums.moneysavingexpert.com/discussion/4832399
Also you could use his POPLA appeal to improve yours in places perhaps, and you could take a leaf out of his book and seriously consider suing VCS using a simple online MCOL claim for your costs, harassment and wasted time, after the event.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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