POPLA proof read please Humberside airport

ithitthefan

Hi, could someone have a read of my submission to POPLA please. I spent hours reading through posts and POPLA decisions and my brain is a bit mushy now.
The letter from VCS states that the driver stopped in a prohibited area, the the bus stop is on private land, VCS are the creditors who incur significant costs in managing the parking location to the stated terms and conditions and to follow up on any breaches of these identified and are seeking damages from the motorist. Thanks for any help.

Reference verification code …………

[...] appeals the above Parking Charge Notice for £100 on the following grounds, with supporting details below.


The amount demanded is a penalty and not a genuine pre estimate of loss
The basis in law for the charge.
Issues concerning operating within the BPA Approved Operator Scheme Code of Practice.


The facts.

On ………… the driver had arranged to meet an arrival after a flight at Humberside Airport. The arrangement made was to pick up the person because there were no buses timetabled to arrive or leave from the Airport at any time during that day. On exiting the airport terminal the passenger, with a broken wheeled suitcase, walked along the pavement to the bus stop (with no double yellow lines) indicating to be picked up by the driver at that safe place. The bus stop is set in a lay-bye and is long enough for at lest 2 full length buses to pull in and out without causing obstructions to the flow of traffic on the airport access road. The driver and the person being met were unaware of any no stopping signs at the bus stop until a passenger saw the signs parallel to the road which were not visible to an approaching motorist, the driver read the sign then immediately left the passenger by the road and drove off to a car park leaving the passenger to drag the heavy luggage to the car.

Unknown to the driver, VCS had taken photographs from their white van, which was parked on yellow ‘hatch’ lines in a no stopping area on the roundabout outside the airport entrance. The vehicle was stopped at the bus stop for less than 30 seconds.

I wrote to Vehicle Control Services Ltd and disputed the parking charge on the grounds that I had no contract with them, I had not committed trespass and in any case the £100 charge was punitive, unfair and unreasonable. I asked them to provide details to support their claim to allow me to make an informed decision on the legitimacy of their charges.

In reply VCS refused to identify the landowner or to provide a contract that allows them to levy ‘parking charges’ for stopping on the approach roads. They have said that the charge of £100 is liquidated damages for breach of a contract and that they have calculated the sum based on a genuine pre-estimate of their losses. They refuse to give me details of the estimate but say that a full breakdown of loss will be provided should the matter proceed to court.


Grounds for Appeal


1. The amount demanded is a penalty and not a genuine pre estimate of loss

a. The charge of £100 for stopping for less than one minute is punitive and out of all proportion to the loss incurred by VCS. Neither the invoice nor the signage gives any justification for the amount of such a hypothetical charge as a reasonable estimate of loss for breach of contract.

b. It is a principle of law that “an innocent party cannot recover for loss that he could have avoided by taking reasonable steps.” In this case, if the objective is to prevent vehicles from stopping in situations like this it would be better achieved by taking the reasonable step of having an agent (from VCS) advising would-be stoppers that this is not allowed.
It seems however that the purpose of the VCS is to maximise the number of drivers caught stopping, rather than minimise the stopping in the interests of safety. This approach conflicts with the spirit of the AOS Code of Conduct, which is to adopt a reasonable approach to enforcement; indeed enforcement of a no-stopping rule would be best defined as preventing vehicles from stopping, rather than catching and the maximum number of “offenders” and seeking to extract £100 each time. I believe therefore that the charge 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.

c. A similar incident on a public highway in similar circumstances would in all probability result in either a warning or even a helpful hand from a police officer, assuming there was no traffic safety issue involved.

2. The basis in law for the charge
It would seem from the VCS letter that the PCN is essentially an invoice arising from a civil dispute, in this case requesting damages for breach of contract.The question arises therefore whether in this case a contract had been entered into. The PCN refers to terms and conditions to which the driver agrees to be contractually bound being placed at the entrance to “the controlled zone’ the smaller print on the signs indicating the charges is too small to be read by the driver of a vehicle in motion. So we submit in the first instance that no contract with VCS involving any charges was entered into by the driver.

Secondly, the vehicle stopped at a safe place, namely a bus stop when there were no buses in the immediate vicinity or timetabled to arrive in the foreseeable future, therefore no obstruction was caused. While there are “No Stopping” signs at the bus stop these are parallel to the road and therefore not visible to an approaching motorist (clearly shown on the photograph from VCS) – who would have to stop and remain for some time to read the small print concerning the charges – and in doing so incur a PCN. There are no yellow lines at the bus stop.




3. Issues concerning operating within the BPA Approved Operator Scheme Code of Practice (CoP)
a. I would wish to see evidence that VCS has clear authorisation (as required in para. 7.1 of the CoP) from the owner of Humberside Airport to issue Parking Charge Notices for safely stopping at the bus stop.
 
b. Para. 9.1 of the CoP indicates that operators should “make sure that vehicles engaged in parking enforcement, such as ANPR vehicles, are marked clearly with appropriate livery or your business name, so that members of the public can see that you are the operator.” The white van at Humberside does NOT have any clear indication of who the operator is, or even that it is to do with parking enforcement. It just says “Mobile enforcement vehicle” with a picture of a camera.

c. Para 21.1 Automatic number plate recognition states; “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”.

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 the above point in the BPA Code of Practice. They will need to show evidence to the contrary 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'.

d. Para 13 of the CoP refers to a grace period – and as above we submit that the same spirit should apply to stopping in a difficult situation as encountered in this case.

In addition, the letter from VCS mentions that if appropriate VCS would be entitled to seek damages for trespass. I am advised however that only a person in possession of the land is able to bring a claim for trespass, and as far as I am aware VCS is not the owner of the access roads to Humberside Airport. If this is the case, then that clause is a misrepresentation of the authority of VCS.
f. Para. 18 of the CoP discusses signage, and our submission above indicates the inadequacy of this as regards (i) creating a contract upon using the access roads (the small print is too small to be readable by the driver of a vehicle in motion) and (ii) warning drivers that the bus stop is also included.
g. Para. 19 of the CoP says “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 [the operator] suffer.” The charge of £100 has not been justified as a genuine pre-estimate of loss.

Coupon-mad

BPA CoP breaches do NOT win a POPLA appeal. I would use one like the ones you will find when you search this forum for 'VCS Airport POPLA stopping zones' such as this one:

https://forums.moneysavingexpert.com/discussion/comment/65185287#Comment_65185287

That one has all the necessary points and is set out with headings which makes it easier for the Assessor to pick out your 'easy win' point!

ithitthefan

Dear Coupon mad, thank you for the swift reply. Your help is greatly appreciated.

nigelbb

There is another argument that totally scuppers the claim of VCS. They are pursuing the Registered Keeper for a parking charge which can only be done invoking keeper liability under POFA 2012 BUT Humberside airport is not relevant land for the purposes of POFA 2102 as bylaws apply.

Romans_Dad.

Hi ithitthefan,

Just a quick post to hopefully assure you in your appeal.

POPLA do seem to listen to common sense appeals (in my case any way), as I've just received confirmation this morning from POPLA that I've won my appeal again VCS with regards to a stopping contravention at Humberside International Airport.

My circumstances were slightly different to yours, but like yourself, my vehicle pulled up momentarily to pick up a passenger in the bus stop lay-by. But in addition, my circumstances were late at night whilst no other vehicles where using the roads, and the car park was virtually empty.

I've had a quick look through your appeal information and it looks sound. I won my appeal on the grounds of the,"Operator not showing that the parking charge amount is a genuine pre-estimate of loss", which reading through the thousands of threads on-line seems to be a winner.

I'm a little disappointed that I didn't also win the appeal on the other points that were submitted i.e operator was outside timescales to establish keeper liability, no contract with the driver etc. But I suppose a win's a win and I shouldn't grumble )

As you've done, stay confident, stick to the facts (as many of them as possible), do not name the driver and really push that "the Operator has not shown that the parking charge amount is a genuine pre-estimate of loss".

VCS did do their homework with a 16 page evidence pack against me, but don't let this upset you to much. In the end, common sense did prevail, and more pleasingly, VCS are a little more out of pocket for their childish behaviour which amounts to no more than school yard bullying!

Good luck.....

nigelbb

Romans_Dad. wrote: »

Hi ithitthefan,

Just a quick post to hopefully assure you in your appeal.

POPLA do seem to listen to common sense appeals (in my case any way), as I've just received confirmation this morning from POPLA that I've won my appeal again VCS with regards to a stopping contravention at Humberside International Airport.

My circumstances were slightly different to yours, but like yourself, my vehicle pulled up momentarily to pick up a passenger in the bus stop lay-by. But in addition, my circumstances were late at night whilst no other vehicles where using the roads, and the car park was virtually empty.

I've had a quick look through your appeal information and it looks sound. I won my appeal on the grounds of the,"Operator not showing that the parking charge amount is a genuine pre-estimate of loss", which reading through the thousands of threads on-line seems to be a winner.

I'm a little disappointed that I didn't also win the appeal on the other points that were submitted i.e operator was outside timescales to establish keeper liability, no contract with the driver etc. But I suppose a win's a win and I shouldn't grumble )

As you've done, stay confident, stick to the facts (as many of them as possible), do not name the driver and really push that "the Operator has not shown that the parking charge amount is a genuine pre-estimate of loss".

VCS did do their homework with a 16 page evidence pack against me, but don't let this upset you to much. In the end, common sense did prevail, and more pleasingly, VCS are a little more out of pocket for their childish behaviour which amounts to no more than school yard bullying!

Good luck.....

That's not a common sense result from POPLA but a particular form of legal words that they cannot dismiss & would not be what anyone would submit in a common sense appeal. A common sense appeal would be that stopping to pick up a passenger is not 'parking' & thus not subject to a parking charge but POPLA will dismiss this because you don't use the magic legal words.

Romans_Dad.

Just to elaborate further,

VCS provided a "pre-estimate of loss statement" in their evidence pack, but within these costings they had included a sum for dept recovery.

POPLA ruled that this case may never get to the dept recovery stage, so this cost should never have been included, thus upheld the appeal.

ithitthefan

Just to let you know that the POPLA assessor allowed my appeal on the grounds that the parking charge was not a genuine pre-estimate of loss.

Thank you for your help and keep up the good work!

Coupon-mad

Well done - have you updated the detail into the POPLA decisions thread yet?