VCS John Lennon Airport

Umkomaas

It's a direct lift from a previous VCS POPLA appeal, so, unless there was a line of three cars at night, then this paragraph is likely to be totally incorrect.

https://forums.moneysavingexpert.com/discussion/4644637

@OP - if you've lifted the rest of your appeal from a previous one, have you clinically read through it to ensure that it fully relates to your particular circumstances on the day (or was it night)?

majster

thank you for directing me to maninwhite's thread, his draft suits perfectly to my event as my dad stopped for 30 seconds where it is prohibited but he did not even parked on the car parking. this is my final version. I would very appreciate if you have a look at it again.

[FONT=&quot]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[/FONT]
[FONT=&quot]2). Not relevant Land under POFA 2012; no registered keeper liability[/FONT]
[FONT=&quot]3) The alleged contravention did not take place [/FONT]
[FONT=&quot]4) No landowner contract nor legal standing to form contracts or charge drivers[/FONT]
[FONT=&quot]5) No Contract with driver[/FONT]
[FONT=&quot]6) Misleading and unclear signage[/FONT]
[FONT=&quot]7) 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.
POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA - that:

'I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc vBank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine BesFilmcilik Ve Yapimcilik & Anor v United International Pictures & Ors[2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.'

2) 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.

3) 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.

In addition, VCS have admitted that they "are outside the delivery timescales for maintaining [their] rights to keeper liability", rendering this PCN unenforceable.[/FONT]
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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) Misleading and unclear signage.
The alleged contravention is 'stopping on a clearway' which is a misleading term because of its similarity to the Highways Agency term 'urban clearway'. If VCS intend this apparently private road to treated by drivers as an urban clearway then the signs and terms used must be compliant with the TRSGD2002 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. Any repeater signs in this area do not face the oncoming traffic and are sporadically placed if at all at this junction. So they are unable to be seen by a driver and certainly cannot be read without stopping, and therefore do not comply with the BPA code of practice. VCS are required to show evidence to the contrary.

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.''


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'.[/FONT]
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Coupon-mad

You can add this to the pint about bylaws because we KNOW they do apply still, despite VCS saying they don't:


2) 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 byelaws (maximum £5 'penalty') and so POFA 2012 does not apply.

POFA 2012 3(1)(c) states that Schedule 4 only applies on land on which the parking of a vehicle is not subject to a statutory control. It further states (3)For the purposes of sub-paragraph (1)(c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.

A set of the byelaws for the Liverpool Airport have been obtained from a reliable source, Liverpool City Council, in a FOI request which is in the public domain. The byelaws state at para 2.19 that the following act is prohibited."parking a vehicle elsewhere than in a place provided for that purpose." The penalty for this is a fine not exceeding five pounds. These byelaws have never been repealed/revoked so if VCS suggest they have, I put them to strict proof of that assertion and I refute it.