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Humberside Airport POPLA Appeal
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johnb80
Posts: 55 Forumite
Weve gone through the appeal with VCS which as predicted was turned down. Interestingly in the letter received it says "the driver stopped on the roundabout where they could have caused an obstruction to other drivers" this was not the case and their photographs clearly show the driver stopped in a bus stop with no yellow lines, it does have signs saying no stopping but they are at high level and parallel to the traffic. The other point is that they have still not correct spelt the keepers name (the last few letters of the surname are missing) I don't know if any of the above points are relevant. I have copied and changed slightly a POPLA appeal from on here and would appreciate your comments, I don't want to be the one to break the 100% success record.
Thanks in advance - John
Mrs xxxxxxxxxxxxx
xxxxxxxxxxxx
xxxxxxxxxxxx
Lincolnshire,
DN2X- XXX
Dear POPLA Adjudicator
RE: POPLA verfication code 90XXXXXX
Vehicle Registration: GXXXXXXXX
PPC: Vehicle Control Services Limited
PCN ref: VCXXXXXXXXX
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 appealingagainst above charge. I contend that I am not liable for the parking charge on thefollowing 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 wasincurred and that the charge levied is purely a fixed sum implemented inadvance by VCS as a revenue-raiser. It does not represent a genuinepre-estimate of any loss following from the incident. VCS cannot argue thatthis charge is made up of tax-deductible business costs because these wouldexist even if no cars stopped and got a ticket that day. It is alsounreasonable and unfair; an unenforceable penalty dressed up as an imaginaryloss, and as such, it breaches the Unfair Terms in Consumer ContractsRegulations 1999. If VCS believes otherwise they must be able to show a fullbreakdown 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 fora breach of contract or act of trespass, this charge must be based on thegenuine 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 parkingcharge must be a genuine pre-estimate of loss in order to be enforceable. Forexample, 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 bebased upon loss flowing from a breach of the parking terms, and in thisinstance there was no such loss.
2. Signage notcompliant with the BPA code of practice and not forming acontract with a driver.
I believe the signs and any core terms VCS are relying upon were unclearin all respects. VCS needs to show POPLA their evidence and signage map/photoswhich they might contend meet all the requirements I have listed below. Thereare no low-positioned, clear signs on entry to this road which would havecommunicated the terms & conditions of stopping there to a seated driver inmoving traffic. This is a breach of the BPA Code of Practice at Appendix Bwhich sets out strict requirements for entrance signage, including ''The signshould be placed so that it is readable by drivers without their needing tolook away from the road ahead. VCS have a duty to make the terms so clear thatthey cannot be missed. To fail in this respect means that the elements of acontract have not been met. To suggest a breach of contract, VCS also needs toshow that the driver actually saw, read and accepted the terms, which theycannot do as it is clearly untrue. The idea that any driver would accept theseterms to pay this charge knowingly is perverse and beyond credibility. Thetruth is that the driver did not see, understand nor accept the alleged terms.VCS may claim that generic signage is displayed around the site but this does notmeet the BPA Code of Practice rules nor the requirements for consideration whenforming an alleged contract. It is fact impossible to read the terms andconditions of the contract without stopping.
I would draw the assessor's attention to the 'No Stopping Zones' sectionof the Chief Adjudicator's first Annual POPLA Report 2013:
''Typically the motorist may have stopped on a double yellow line...ofcourse, on the public highway this is generally permitted, although not on ared route where there is a clear red line. It is therefore very important thatany prohibition is clearly marked; bearing in mind that such signage has to bepositioned, and be of such a size, as to be read by a motorist without havingto stop to look at it. Signs on red routes, unlike those indicating mostparking restrictions, are generally positioned to face oncoming traffic, ratherthan parallel to it.''
3. Not relevant land
Airport land is not 'relevant land' as it is already covered bystatutory bylaws and so is specifically excluded from 'keeper liability' underSchedule 4 of the Protection of Freedoms Act 2012. As I am the registeredkeeper I am not legally liable as this Act does not apply on this land. I putthe Operator to strict proof otherwise if they disagree with this point andwould require them to show evidence including documentary proof from theAirport 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) ofschedule 4 of the Protection of Freedom Act 2012 in that it does not identifythe creditor. The operator is required to specifically "identify" thecreditor 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 anypurported contract was made. This they have failed to do and thus have notfulfilled all the requirements necessary under POFA to allow them to attemptrecovery of any charge from the keeper.
5. No contract with landowner.
I believe there is no contract with the landowner/occupier that entitlesthem to levy these charges and therefore VCS Ltd has no authority to issueparking charge notices (PCNs). This being the case, the burden of proof shiftsto VCS Ltd to prove otherwise so I require that VCS Ltd produce a copy of theircontract with the landowner, which must be BPA CoP compliant. This meansspecifically, that the contract must be dated before this parking event andshow that VCS Ltd are granted rights to form contracts with drivers on site andto 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 thissite. Even if a basic contract is produced and mentions PCNs, the lack ofownership or assignment of title or interest in the land reduces any contractto one that exists simply on an agency basis between VCS Ltd and theowner/occupier, containing nothing that VCS Ltd can lawfully use in their ownname as a mere agent, that could impact on a third party customer. I challengeVCS Ltd to rebut this point in the light of two very recent small claimsdecisions about a parking operator with a similar contract. In ParkingEye vSharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013. District JudgeJenkins dismissed the case on the grounds that the parking contract was acommercial matter between the Operator and the landowner, and didn’t create anycontractual relationship with motorists who used the land. This decision wasfollowed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe CountyCourt 14/11/2013 where costs of £90 were awarded to the Defendant. DistrictJudge Jones concurred with the view in ParkingEye v Sharma that a parkingoperator has no standing to bring the claim in their own name. I submit thatthis applies in my case as well, especially as it was also the case in VCS Ltdv Ibbotson, Case No. 1SE09849 on 16/5/2012, where District Judge McIlwainefound as fact that only the landowner can take the matter to court and notfirms like VCS Ltd acting merely as their agents.
I request that my appeal is upheld and the charge dismissed.
Yours Sincerely
Mrs xxxx xxxxxxxx
Thanks in advance - John
Mrs xxxxxxxxxxxxx
xxxxxxxxxxxx
xxxxxxxxxxxx
Lincolnshire,
DN2X- XXX
Dear POPLA Adjudicator
RE: POPLA verfication code 90XXXXXX
Vehicle Registration: GXXXXXXXX
PPC: Vehicle Control Services Limited
PCN ref: VCXXXXXXXXX
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 appealingagainst above charge. I contend that I am not liable for the parking charge on thefollowing 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 wasincurred and that the charge levied is purely a fixed sum implemented inadvance by VCS as a revenue-raiser. It does not represent a genuinepre-estimate of any loss following from the incident. VCS cannot argue thatthis charge is made up of tax-deductible business costs because these wouldexist even if no cars stopped and got a ticket that day. It is alsounreasonable and unfair; an unenforceable penalty dressed up as an imaginaryloss, and as such, it breaches the Unfair Terms in Consumer ContractsRegulations 1999. If VCS believes otherwise they must be able to show a fullbreakdown 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 fora breach of contract or act of trespass, this charge must be based on thegenuine 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 parkingcharge must be a genuine pre-estimate of loss in order to be enforceable. Forexample, 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 bebased upon loss flowing from a breach of the parking terms, and in thisinstance there was no such loss.
2. Signage notcompliant with the BPA code of practice and not forming acontract with a driver.
I believe the signs and any core terms VCS are relying upon were unclearin all respects. VCS needs to show POPLA their evidence and signage map/photoswhich they might contend meet all the requirements I have listed below. Thereare no low-positioned, clear signs on entry to this road which would havecommunicated the terms & conditions of stopping there to a seated driver inmoving traffic. This is a breach of the BPA Code of Practice at Appendix Bwhich sets out strict requirements for entrance signage, including ''The signshould be placed so that it is readable by drivers without their needing tolook away from the road ahead. VCS have a duty to make the terms so clear thatthey cannot be missed. To fail in this respect means that the elements of acontract have not been met. To suggest a breach of contract, VCS also needs toshow that the driver actually saw, read and accepted the terms, which theycannot do as it is clearly untrue. The idea that any driver would accept theseterms to pay this charge knowingly is perverse and beyond credibility. Thetruth is that the driver did not see, understand nor accept the alleged terms.VCS may claim that generic signage is displayed around the site but this does notmeet the BPA Code of Practice rules nor the requirements for consideration whenforming an alleged contract. It is fact impossible to read the terms andconditions of the contract without stopping.
I would draw the assessor's attention to the 'No Stopping Zones' sectionof the Chief Adjudicator's first Annual POPLA Report 2013:
''Typically the motorist may have stopped on a double yellow line...ofcourse, on the public highway this is generally permitted, although not on ared route where there is a clear red line. It is therefore very important thatany prohibition is clearly marked; bearing in mind that such signage has to bepositioned, and be of such a size, as to be read by a motorist without havingto stop to look at it. Signs on red routes, unlike those indicating mostparking restrictions, are generally positioned to face oncoming traffic, ratherthan parallel to it.''
3. Not relevant land
Airport land is not 'relevant land' as it is already covered bystatutory bylaws and so is specifically excluded from 'keeper liability' underSchedule 4 of the Protection of Freedoms Act 2012. As I am the registeredkeeper I am not legally liable as this Act does not apply on this land. I putthe Operator to strict proof otherwise if they disagree with this point andwould require them to show evidence including documentary proof from theAirport 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) ofschedule 4 of the Protection of Freedom Act 2012 in that it does not identifythe creditor. The operator is required to specifically "identify" thecreditor 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 anypurported contract was made. This they have failed to do and thus have notfulfilled all the requirements necessary under POFA to allow them to attemptrecovery of any charge from the keeper.
5. No contract with landowner.
I believe there is no contract with the landowner/occupier that entitlesthem to levy these charges and therefore VCS Ltd has no authority to issueparking charge notices (PCNs). This being the case, the burden of proof shiftsto VCS Ltd to prove otherwise so I require that VCS Ltd produce a copy of theircontract with the landowner, which must be BPA CoP compliant. This meansspecifically, that the contract must be dated before this parking event andshow that VCS Ltd are granted rights to form contracts with drivers on site andto 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 thissite. Even if a basic contract is produced and mentions PCNs, the lack ofownership or assignment of title or interest in the land reduces any contractto one that exists simply on an agency basis between VCS Ltd and theowner/occupier, containing nothing that VCS Ltd can lawfully use in their ownname as a mere agent, that could impact on a third party customer. I challengeVCS Ltd to rebut this point in the light of two very recent small claimsdecisions about a parking operator with a similar contract. In ParkingEye vSharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013. District JudgeJenkins dismissed the case on the grounds that the parking contract was acommercial matter between the Operator and the landowner, and didn’t create anycontractual relationship with motorists who used the land. This decision wasfollowed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe CountyCourt 14/11/2013 where costs of £90 were awarded to the Defendant. DistrictJudge Jones concurred with the view in ParkingEye v Sharma that a parkingoperator has no standing to bring the claim in their own name. I submit thatthis applies in my case as well, especially as it was also the case in VCS Ltdv Ibbotson, Case No. 1SE09849 on 16/5/2012, where District Judge McIlwainefound as fact that only the landowner can take the matter to court and notfirms like VCS Ltd acting merely as their agents.
I request that my appeal is upheld and the charge dismissed.
Yours Sincerely
Mrs xxxx xxxxxxxx
0
Comments
-
Very nice indeed! Send it!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 -
I would open with the "not guilty as charged" as your thread said you did not stop on a roundabout.
Refer POPLA to that point.0 -
Thanks guys, I'll make the minor amendment and send it off. As I said, it wasn't my work I forget who did it on here but thanks whoever you are.
I will of course update you on the outcome.
Regards - John0 -
The more I look at Humberside airport the more ridiculous it gets......
The signs apart from the one at the entrance which you don't have time to read because you've just come off a junction and are approaching a roundabout does actually face the driver, ALL of the others are parallel to the road.
Their charge in my case is the equivalent to £24,000 per hour (£100 for 15 seconds) how can they justify that i.e. tshow they have lost that amount.
I'm wondering what the situation is with people who have paid these unlawful tickets, could a group action be brought against Humberside Airport (they appointed VCS), I'm also interested in suing them for my time if/when we get a successful POPLA appeal through.
John0 -
I'm also interested in suing them for my time if/when we get a successful POPLA appeal through.
You will win at POPLA in 2014, with that appeal. And you can sue VCS for your costs, it has been done with NGP and Vinci already I think - and should be done more often. Read this!
http://forums.pepipoo.com/index.php?showtopic=85641
In fact your case is stronger than most because you have a ticket alleging 'keeper liability under POFA2012' sent to you at home, effectively forcing you to appeal even though Airport Land is not relevant land for keeper liability (due to bylaws). POFA 2012 doesn't apply to land covered by statute (bylaws!). VCS know this as it's been raised lots of times by appellants on here who always win at POPLA.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 -
The more I look at Humberside airport the more ridiculous ".............
I'm wondering what the situation is with people who have paid these unlawful tickets, could a group action be brought against Humberside Airport (they appointed VCS), I'm also interested in suing them for my time if/when we get a successful POPLA appeal through.
John
No such thing as a group action in the UK0 -
Folkiedave wrote: »No such thing as a group action in the UK
Really, I thought lots of things were done by groups eg PPI etc ?
J0 -
No, most people here claim their own PPI back with one form being completed - in fact I was having a sort out of paperwork today and found my nice PPI reclaim letter from Santander which paid for our last Summer holiday!
But what you are thinking of is when several people with similar UK claims use the same solicitor and decide to present one to court first as a test case, so that the others might follow and win without hassle afterwards.
But to do a simple MCOL you can just fill in an online form as discussed in the pepipoo thread linked already, chance your arm and see what happens. You wouldn't use a solicitor for a small claim, it's just a decision between two parties, maybe a bit like Judge Judy!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 -
Hi chaps and chapesses............. R E S U L T
POPLA appeal upheld, not a genuine pre estimate of cost.
I have done loads of research on number side airport, if anybody wants a copy let me know. The signs at the entrance for example can only be read for less than a second at 15 mph, no way for driver to read understand the content. I have also measured them and they note meet dft guidelines either.
Now I'm going to have a go at humbler side airport, they appoint these chimps, they could have overturned the ticket but........ They didn't.
I feel a website, bbc watchdog, newspapers and whole world of hurt opening up for Paul litten, commercial director, humberside airport.
Thank you all
John0 -
please post the redacted result in the successful popla decisions sticky thread, for posterity (including the assessors name)
thank you
and well done0
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