VCS Liverpool Airport - PCN received months after alleged contravention

homerj69

Hi all, first post what a great forum this is!

I've read the stickies, read the POFA Act, read the BPA site, read the POPLA FAQ's etc., but would greatly appreciat a quick review of this PCN challenge. Without specifying exact dates I recently received a PCN from VCS for an alleged contravention which occurred several months ago. The PCN mentions the POFA, and is a 'Notice to Keeper'.

It seems fairly clear cut to me - they are way beyond the 14 day limit for issuing the notice to keeper, so I was going to challenge on that basis alone (initially) then just refer to POPLA if they reject it.

I drafted this, based on other appeals I've seen...

PCN Reference number: xxxxxxxxxx
Contravention Date: dd/month/yyyy
Issue Date of PCN: dd/month/yyyy

Dear Sir/Madam,
I refer to the above Parking Charge Notice received by me on dd/month/yyyy.
I am the owner and registered keeper of the vehicle concerned, therefore I assume the PCN is a ‘Notice to Keeper’ as defined in Schedule 4 of the Protection of Freedoms Act (POFA) 2012.
After carefully reviewing the PCN, I have found it to be non-compliant with the Act and therefore I am challenging and appealing the PCN on the following grounds:

1. The time difference between the alleged contravention date and the issue date of the PCN (both dates are detailed above) is significantly greater than the period allowed by the Act. Therefore you have failed to comply with paragraph 9(4)(b) because you have not issued the PCN within the relevant period which is defined as 14 days in paragraph 9(5).

This PCN is clearly in breach of both the POFA (as detailed above) and the BPA Code of Practice to which you operate. Therefore I expect you will confirm cancellation of the PCN to me in writing.
If you reject this appeal please supply a POPLA code by return so that I can refer matters for their consideration. I reserve the right to add additional grounds for appeal if this matter needs to be referred to POPLA.
Yours faithfully,
The keeper.



What do you think? Good to go?
TIA!

homerj69

OK, so VCS have rejected the above appeal, and added some lies in their rejection suggesting '...you have confirmed to us that on the {date}, the driver stopped the vehicle in a prohibited area…' which you can see from my original appeal above, I did no such thing.

They also acknowledged they were outside the POFA 2012 delivery timescales, but say 'However, will be pursuing the PCN under a non-statutory route, primarily for breach of the terms and conditions of stopping a prohibited area.'

Not even sure what that last part means - what non-statutory route would that be?!?

Anyway, they've supplied the POPLA verification code so I guess my next step is to formally appeal to POPLA? Am I OK to follow the example in the sticky for 'Airport VCS' / John Lennon airport, taking Coupon-mad's revised appeal and removing the bits not relevant to me?

Ta.

ampersand

Given their makeitupaswegoalong expertise, check that POPLA code using prankie's helpful checker:
http://parking-prankster.blogspot.co.uk/2013_12_01_archive.html

PP's done some good VCS pieces there too, inc. this letter to Simon RS
http://parking-prankster.blogspot.co.uk/2013/11/an-open-letter-to-simon-renshaw-smith.html

homerj69

Thanks, the POPLA code looks compliant - assuming the 1st 3 chars 906 is correct for VCS.

I hacked the following, amending the section 2 to be about the POFA 2012 non-compliance...

***

Dear POPLA
Re verification code xxxxxxxxxx

As the registered keeper I wish my appeal to be considered on the following grounds.

1) Amount demanded is a penalty not a genuine pre estimate of loss
2) Non-compliance with POFA 2012
3) Not relevant Land under POFA 2012; no registered keeper liability
4) No landowner contract nor legal standing to form contracts or charge drivers
5) No Contract with driver
6) Non-compliant ANPR 'hidden camera van' at this location which is not a car park



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 VCS are alleging a 'failure to comply' yet cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which renders this charge unenforceable.


2) PCN not issued within POFA 2012 time limit
The date of the alleged contravention is recorded on the issued Parking Charge Notice as ’xx/xx/2013’. The PCN was issued on ’xx/xx/2014’ - a difference of over 5 months.
The time difference between the alleged contravention date and the issue date of the PCN (both dates are detailed above) is significantly greater than the period allowed by the Act. Therefore VCS have failed to comply with paragraph 9(4)(b) because they did not issue the PCN within the relevant period which is defined as 14 days in paragraph 9(5).

3) Not Relevant Land as defined under POFA 2012; no registered keeper liability.
The driver has not been identified, yet VCS are claiming POFA 2012 registered keeper liability for this charge. The registered keeper is not liable for this charge as Liverpool 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. 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) No landowner contract nor legal standing to form contracts or charge drivers
As VCS are not the owners of this land and as such 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. I believe there is no contract with the landowner that gives VCS the legal standing to levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849 16.5.2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, VCS have breached the BPA Code of Practice section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable.


5) 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 they by doing so they would block the junction. In any case, as VCS are only an agent working for the owner, mere signs do not help them to form a contract. VCS -v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model. In this instance, there was no contract formed whatsoever, no consideration was capable of being offered.to the driver, who was simply queuing on a road in traffic and saw no pertinent signs nor accepted these terms whilst driving.


6) Non-compliant ANPR 'hidden camera van' system 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 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'.

***

Any comments?

da_rule

Looks good, it's quite refreshing to see someone who has obviously read the stickies and has had a really good go at preparing everything for themselves using the information contained in them.

ampersand

2012 or 2013 compliance?
There have been posts about this.

bod1467

Item 5 - "(see 'misleading and unclear signage' below)". There is not any section about signage in the appeal, so remove those words.

homerj69

ampersand wrote: »

2012 or 2013 compliance?
There have been posts about this.

Sorry ampersand, you've confused me there - are you referring to POFA compliance? I can't see any references to POFA 2013.

Please clarify, thanks

Redx

POFA is 2012 , popla published a report in 2013 , so there may be a typo above but always check for POFA 2012 compliance in england and wales

hoohoo

Even though the notice is not POFA complinant, you need to spell it out for the assessors.

eg

As POFA 2012 does not apply, the operator cannot pursue the registered keeper. They can only pursue the driver.

homerj69

OK, I updated section 2 to add a further paragraph (based on a parking prankster example), how's this?...

2) PCN / ‘Notice To Keeper’ not issued within POFA 2012 time limit
The date of the alleged contravention is recorded on the issued Parking Charge Notice as ’xx/xx/2013’. The PCN (Notice To Keeper) was issued on ’xx/xx/2014’ - a difference of over 5 months.
The time difference between the alleged contravention date and the issue date of the PCN (both dates are detailed above) is significantly greater than the period allowed by the Act. Therefore VCS have failed to comply with paragraph 9(4)(b) because they did not issue the PCN within the relevant period which is defined as 14 days in paragraph 9(5).
Therefore keeper liability does not apply. The parking company can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As VCS have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.