Assistance Please - PCN Robin Hood Airport

MissElle1982

Ok, so now got my POPLA code, been away from home so I'm now a bit short on time so want the email sent tomorrow if I can get some help before then.

Anything changed lately or is it just a copy and paste job from elsewhere?

Thanks in advance

Umkomaas

MissElle1982 wrote: »

Ok, so now got my POPLA code, been away from home so I'm now a bit short on time so want the email sent tomorrow if I can get some help before then.

Anything changed lately or is it just a copy and paste job from elsewhere?

Thanks in advance

To a degree, but it needs to make sense in the context of your circumstances, and you do need to understand something of what you are c&p'ing.

Don't go grabbing the first thing that jumps out at you that appears 'good', with case histories and chock-full of 'legalese', otherwise you can end up looking a bit silly and, worse, losing.

MissElle1982

Nicked and adapted someone's whose won already - formattings gone a bit haywire with copying and pasting but hope you can get the gist:

A Notice to Keeper was issued to me, the Registered Keeper of vehicle registration XXX, for an alleged contravention of stopping on a roadway where stopping is prohibited. VCS issued a Parking Charge Notice, PCN number XXX, because the vehicle was allegedly recorded on their Automatic Number Plate Recognition system.
As the registered keeper, I have researched the matter, taken legal advice and 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) Non-compliance with BPA AOS Code of Practice
3) Not relevant land as defined 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) Signage not compliant with the BPA Code of Practice
7) Non-compliant ANPR and data collation


1) 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 punitive contravening the Unfair Contract Terms Act 1997. On the date of the claimed loss the car park was far from full capacity and there was no physical damage caused. VCS cannot lawfully include business costs which would occur whether or not the alleged contravention took place, so there can be no loss arising from this incident. The amount claimed is excessive, arbitrary and in no way proportionate to any alleged breach of contract. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with. 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) Non-compliance with BPA AOS Code of Practice
An appeal by the registered keeper was sent within the required 28 days of the date of the PCN. I clearly stated that I denied all liability to their company and required a POPLA verification code for me to appeal independently as per the BPA Code of Practice. VCS ignored this appeal and, as well as failing to include a correct and/or valid POPLA code within the rejection correspondence, VCS appeared to indicate that the issue of a POPLA code is conditional on driver details being supplied. It is the right of the registered keeper to appeal and there is no requirement to identify the driver. At that stage they should have cancelled the PCN as they had exceeded the time limit allowed to reply. There were no extenuating circumstances which could have led to their delay, so they have breached the BPA Code of Practice as regards the handling of appeals, which renders this charge unenforceable.
 
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 Robin Hood Airport is designated as an airport by the Secretary of State and therefore roads within the airport are subject to statutory bylaws so is specifically excluded from keeper liability under Schedule 4 POFA 2012, and therefore does not apply on this land. 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
VCS do not appear to own this land and are assumed to be merely agents for the owner or legal occupier. In their notice and in the rejection letters, they did not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question. 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 copy of the original contract showing the points above is the only acceptable item as evidence that a contract exists and authorises the Operator the right, under contract, to write numerous letters to an Appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from an Appellant and to pursue them through to Court.
I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]). The principal issue in this case was to determine the actual nature of Private Parking Charges.
It was stated that:
If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be.
The ruling of the Court was that:
I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services.
In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above. I believe under 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 point 6 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. 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.
 
6) Signage not compliant with the BPA Code of Practice
I submit that this signage failed to comply with the BPA Code of Practice Section 18 and Appendix B so there was no valid contract formed between VCS and the driver. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Furthermore, because VCS are a mere agent and place their signs so high with barely legible small print, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. I contend that the signs and any core parking terms the Operator are relying upon were too small for any driver to see, read or understand so are in breach of Appendix B (Mandatory Entrance Signs) as VCS have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival.
I require that the Operator provides documentary evidence and signage map/photos on this point, lighting at night, colours used in cases of driver colour blindness and compare the signs to the BPA Code of Practice requirements. I believe that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]).
7) Non-compliant ANPR and data collation

I further contend that the Operator has failed to show any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require them to provide documented compliance to this section of the code in its entirety. This evidence must show documentary proof of contemporaneous manual checks, maintenance, calibration and full compliance with section 21 of the Code, in its evidence.

I also challenge the Operator to show that DPA registration is also complaint with legal and BPA requirements and demand that they demonstrate adherence.

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.


In light of the above I look forward to hearing that my appeal will be upheld and all penalties cancelled.

Umkomaas

The typical VCS modus op at airports is to photo 'stopping where stopping is not allowed', i.e. on the roadway leading to the airport departure/arrival terminal. Was this the case? If so why the reference to 'car park'?

On the date of the claimed loss the car park was far from full capacity and there was no physical damage caused.

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park,

Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking.

Have VCS cited a 'Contractual Term/Charge' (as opposed to 'breach' or 'contravention') in their paperwork?

In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met.

As I'm not aware from your original post on this thread of any of the above detail I am having great difficulty in seeing your POPLA appeal being cohesive or convincing.

Perhaps you can give me some clearer information to assuage my concerns please?