Humberside POPLA Appeal

maninwhitecoat

Good afternoon! Like many others, a PCN was received for "stopping" and I appealed directly to VCS on the grounds GPOEL, insufficient signage and no contract being formed.

We received a reply from VCS including a reply to the three appeal points.

On the subject of GPEOL, they are now citing PE vs Mr Kevin Shelley. Does this make a difference as it's not against Beavis. They also claim the signage was sufficient and that they do have a contract with the airport (although they state the incorrect airport), and have cited the case VCS v HMRC "being overturned following a successful appeal by VCS".

They have included a sentance saying that the "signage in the area state the sum payable in the event of a trespass is committed, therefore we do not have to prove our damages", and also that "The PCN does not attract VAT, as VAT does not apply to trespass..."

So now they are claiming the charge is because of a trespass, and not for "stopping", which is confusing to me?

Here is a draft of my appeal to POPLA, could you please check it over and let me know if you have any comments?

*************************************************

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) Appeal not handled within BPA code of Practice time limit
4) Not relevant Land under POFA 2012; no registered keeper liability
5) No landowner contract nor legal standing to form contracts or charge drivers
6) No Contract with driver
7) Misleading and unclear signage
8) Non-compliant ANPR 'hidden camera van' at this location which is not a car park

1) 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 v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik 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) 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.

3) Appeal not handled within BPA code of Practice time limit
An appeal by the registered keeper was sent within the required 28 days of the date of the PCN. VCS ignored this appeal and sent a notice to keeper claiming the driver had not been identified. It is the right of the registered keeper to appeal and there is no requirement to identify the driver. VCS were sent a copy of the appeal upon receipt of the notice to keeper and at that stage 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.

4) 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 Humberside 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.


5) 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.


6) 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.


7) 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.''


8) 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


Thanks!

nigelbb

You have covered all possible points although the fundamental ones are that the driver has not been identified, yet VCS are claiming POFA 2012 registered keeper liability for this charge even though it's not a charge for parking & it's not relevant land.

If VCS are now claiming that the damages are for trespass then it is up to the occupier of the land to sue for trespass i.e. Peel Holdings owners of Humberside Airport & not some third party PPC. Trespass is an infringement on the rights of the occupier of the land i.e. owner or leaseholder. In the case of airport access roads that are privately owned the motorist is given permission to drive along the access roads in order to reach the terminal. The suggestion that they enter into a contract to drive along the road is nonsense. It's analogous to a free car park but here there is an even stronger case that there is a licence not a contract. If you do not adhere to the T&Cs of the licence by e.g. stopping where they don't want you to stop then the remedy is for them to sue you as a trespasser but any damages would be token only.

Dee140157

On a previous post C-M wrote:

1) Regarding pre-estimate of loss, they are citing Parking Eye v. Mr Kevin Shelley (2013)

Irrelevant case where the PE contract wasn't even dated prior to the parking event and it was unfortunate that Mr Shelley didn't spot it. Only a County Court decision, so not binding nor even vaguely interesting to POPLA!

And on the issue of trespass, I think you need a very strongly worded appeal point as Number 1 of your appeal regarding the signage and trespass, with details of what nigelbb says and possibly more besides. If you have time to wait before you send of your POPLA appeal I would be inclined to wait for some of the other experts to add to this point.

By that I am saying I think nigelbb's point is really important and although I have no expertise here, my gut feeling is that this is something that needs to be fought with every piece of weapon in your armoury, so that if you win on that point it will be of great benefit to others later.

Having said that I could be barking up a totally wrong tree and the other experts will say it is a minor point. I may not be right.

HO87

+1

Normally, only a landowner can pursue a trespasser.

However, I seem to recall that in the final appeal of the VCS v HMRC saga the Court of Appeal referred to the Manchester Airport Plc v Lee Dutton & Others (2000) matter where it was held, amongst other things, that a licensee could pursue trespassers if they could show that the trespasser violated their enjoyment of the rights conferred by the license. This would therefore be a case with which one would expect VCS to be fully conversant - seeing as it was their counsel who cited the case in the first instance.

On that basis, the only way that VCS could justify pursuing a trespasser - using any rights they may have from any putative license granted by Peel Holdings - would be if they had exclusive rights to use the roadways or if the trespasser in someway obstructing them.

Can't see that flying any more than a glider constructed of the best South Ferriby cement.

nigelbb

I seem to recall that VCS pay Peel Holdings £20K per year for a 'fishing licence' at John Lennon Airport Liverpool so suspect that a similar arrangement holds here. However paying to pursue made up traffic contravention gives VCS no right of occupation over the roadways which would be necessary to pursue trespassers.

There is a vaguely similar operation by Proserve at Ransomes Europark in Ipswich. Motorists who stop on the roads on the business park are initially chased by Proserve but are taken to court by Ransomes Europark claiming damages for trespass.

maninwhitecoat

Thank you for your replies so far, they have been helpful to me and I'm sure will be to others in the future. If you would like and if you think it would help, please let me know if you think a copy of the appeal rejection letter would be useful.

I wouldn't be too surprised if VCS also pay a fishing license to Humberside. I'll move the points downwards one and start a new point 1 regarding the claims for tresspass and not stopping.

Just a question though, is the POPLA appeal an appeal against the original PCN or an appeal against the rejected appeal to VCS?

bazster

This trespass codswallop is just another attempt to obfuscate and confuse. They obviously know it has no legs legally and are simply trying to bamboozle the unwary into giving up on "no GPEOL".

Apart from whether they have any interest in the land that would enable them to bring a claim for trespass, there is also the issue of the level of damages.

Since they are alleging trespass there is no contract involved hence the question of GPEOL doesn't arise, and whatever sum specified on their signs has no meaning.

As I understand it the convention for assessing damages for trespass is that it's the value of the benefit the trespasser has obtained from his trespass. So, if the trespasser parked without permission, it would be whatever he could've been expected to pay for parking.

So, what benefit accrues when a confused motorist stops for a few seconds to get his bearings? I'd suggest that it's not unadjacent to £0.00.

Redx

the popla code was issued against the original pcn so that is what you are appealing to popla about (popla dont care if the appeal was refused as they know it has been refused or else you would not have been issued with a popla code)

Coupon-mad

You will win with the above appeal to POPLA - you have even already got in there, a rebuttal of the VCS loss statement before you've even seen it!

maninwhitecoat

Thank you all for your responses. Since the POPLA appeal is an appeal against the original PCN, I find it not necessary to include information arising from the which VCS have raised in their original appeal refusal letter (unless people think otherwise?)

It sounds like they are scaring people into paying the original PCN with legal terminology in the letter.

I'll send off the letter tomorrow evening.

maninwhitecoat

Received the appeal reply from POPLA and the appeal was upheld based on GPEOL. Thanks again for your help!