POPLA Appeal Draft for VCS PCN at Liverpool John Lennon Airport

bubs01

Ok I have had a good read of the threads and the most recent POPLA appeals that fit the same category as the penalty sent on to me as the registered owner, I have compiled the appeal below, can you please have a look over and give me your thoughts as to try and keep the 100% record.

This was at Liverpool JL Airport, pulling into the side of the road for the driver to pick up a pregnant member of the family (not wanting her to walk and move her luggage back to the car park on her own) or to lift the bag into the boot of the car. The whole thing lasted seconds. The charge is from VCS for the alleged contravention detected and recorded by Mobile Traffic Enforcement Cameras (CCTV) at the site on DATE and the reason for the contravention is " Stopping on a roadway where stopping is prohibited."



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) The alleged contravention did not take place
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) Misleading and unclear signage
7) Non-compliant ANPR 'hidden camera van' at this location which is not a car park
8) The notice to keeper does not contain the required information as per POFA 2012

1) The amount demanded is a penalty and not a Genuine Pre-estimate of loss.

The first five minutes in the Liverpool John Lennon Airport pick up / drop off car park are free; the alleged contravention lasted seconds which is significantly less than five minutes and Vehicle Control Services Ltd (VCS) are demanding payment of £60 for what would have been free parking.

Therefore the parking charge does not represent a genuine pre-estimate of loss and is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The amount claimed is excessive and is being enforced as a penalty for allegedly stopping. I wish to see a breakdown of the cost calculations relating to this charge; given all of the costs must represent a loss resulting from the alleged breach at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and can not include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

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. 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 excessive and unenforceable.


2) The alleged contravention did not take place

The notice issued states ‘You are notified under Paragraph 9 (2) (b) of Schedule 4 Of the Protection of Freedoms Act (POFA) 2012 that the driver of the motor vehicle is required to pay this Parking Charge Notice in full.

The relevant part of the POFA states –(The notice must) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.

This paragraph in no way applies to the alleged contravention which is ‘Stopping on a roadway where stopping is prohibited’. The Parking Charge Notice does not apply to the driver of the vehicle having entered a car park where charges apply nor does it refer to any specified period of parking where parking charges apply.

The photographs on the parking charge notice clearly show the car stopped on a road and not in a car park. There was no parking contravention at all. VCS are not able to refer to a regulation that applies to stopping on the road. No contravention applicable to POFA actually took place.

I am not sure whether to add that on the photo it is clear the car is against the side of the road and there are no other cars pictured therefore not causing obstruction. The stop was to help a pregnant member of the family lift her bag as the driver didn't wish for her to have to walk back to the car park or lift the bag on her own. It was for a matter of seconds, if for any reason other vehicles were obstructed (which they were not) then the vehicle could have been moved instantly.


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 VCS 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.

I have seen the note about VCS providing a redacted copy of the contract and the issue around the 35% commission but not sure how to incorporate that into the above - if its un-redacted then I assume the point above still stands?

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 saw no pertinent signs nor accepted these terms whilst driving.

The sign is not clear due to the sheer amount of information on them and therefore could not be read in a moving car, they are also not lit up in any way and look very similar to corporate advertisements also in the area for hotels and car parking.

6) Misleading and unclear signage.

Following receipt of the charge I personally visited the location and the signs do not comply with road traffic regulations or their permitted variations and as such are misleading. VCS’s signs are in the style of a commercial venture and similar to the myriad of commercial ventures along the airport approach. Because the signs are not in the style of a standard road sign there is nothing to draw a driver’s attention to them.

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 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.''

If VCS intend this apparently private road to be treated by drivers as an urban clearway then the signs and terms used must be compliant with the Traffic Signs Regulations and General Directions (TSRGD) 2002 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.

Repeater signs in this area are located in the area of the car parks and on fences running parallel to the road, therefore not facing the oncoming traffic and are not positioned where the driver would have seen them. Therefore they were unable to be seen by the driver and certainly could not be read without stopping, and consequently do not comply with the BPA code of practice. VCS are required to show evidence to the contrary.


7) 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'.

8) The notice to keeper does not contain the required information as per POFA 2012

Schedule 4 paragraphs 8 and 9 of the POFA stipulate the mandatory set of information that must be included on the notice to keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.

The Parking Charge Notice issued to me and attached to this appeal does not:

a. Stipulate the period the car was parked (start and end times)
b. Identify the “creditor” who is legally entitled to recover the parking charge.

The wording of Paragraph 9(2)(h) of Schedule 4 of POFA indicates that the ‘creditor must be identified’. To “identify” a “Creditor” VCS must do more than name that person. The driver is entitled to know the identity of the party with whom he has been legally contracted.

Coupon-mad

That will be fine to win, a very good example of parking forum research. It's refreshing that you have found the info you needed rather than screaming 'help, what do I put in an appeal?!'

No need for the first bit in bold as that's mitigation and won't be considered. And yes they will send a redacted contract so POPLA will find in your favour on that point or on 'no GPEOL'.

If VCS never send you any evidence pack, and POPLA then make the decision (which you will win) please take time out afterwards to complain to POPLA that VCS did not send you the evidence. It's just that they keep doing this and it needs a complaint every time.

bubs01

Thank you very much for your response and once again to all the information on here; I have now sent the appeal and will wait for a response. I will also be writing to the BPA and to Liverpool JL Airport to complain about this company and the set up.

It makes me sick to think how many people will have paid this joke of a charge given the threatening note quoting legal acts which in fact they shouldn't even be using. In a time where everyone is suffering in terms of disposable income the airport should be glad they have anyone even using their service never mind then punishing them in such a perverse way.

Redx

agreed , they did it here https://forums.moneysavingexpert.com/discussion/4821037 for humberside and lost too

and there are dozens of threads on here for vcs at JLA too

bubs01

I'm just logging in to report I won the appeal at POPLA. Thank you so much coupon mad for your reading above and everyone else on this site - another victory is yours! Pasted below but in short; won on GPEOL



(Appellant)
-v-
Vehicle Control Services Limited (Operator)

The Operator issued parking charge notice number ### arising out of the presence at Liverpool John Lennon Airport, on DATE 2013, of a vehicle with registration mark ######

The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.
The Assessor’s reasons are as set out.

Reasons for the Assessor’s Determination

It is the Operator’s case that a parking charge notice was correctly issued, giving the reason as: ‘Stopping on a roadway where stopping is prohibited’. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.

It is the Appellant’s case that:
a) The charge does not represent a genuine pre-estimate of the loss caused by the alleged breach.
b) The alleged breach did not occur.
c) The Operator does not have authority to issue parking charge notices in relation to this land.
d) There have been a number of breaches of the British Parking Association Code of Practice.
e) The Notice to Keeper sent by the Operator does not comply with the Protection of Freedoms Act 2012.

The Appellant has submitted that the parking charge does not represent a genuine pre-estimate of the Operator’s loss, and so is not enforceable.

The Operator does not dispute that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss.
The onus is on the Operator to prove its case on the balance of probabilities. Accordingly, once an Appellant submits that the parking charge is not a genuine pre-estimate of loss, the onus is on the Operator to produce some explanation or evidence to tip the balance in its favour.

In this case the Operator has produced a break-down of how it submits it arrives at its pre-estimate of loss. A number of the heads include general operational costs, and costs which do not relate to the breach in question. Further, some of the costs could not yet have been incurred, and could lead to double-recovery.

Consequently I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss.

Accordingly, I allow the appeal.

I need not decide any other issues.

The Operator should now cancel the parking charge notice forthwith.

da_rule

Would you be kind enough to post a copy of this on the POPLA results thread (https://forums.moneysavingexpert.com/discussion/4488337)