POPLA appeal VCS JLA

batpeople

Hi All,

Got a PCN for stopping at JLA in June. Wrote to VCS using standard appeal letter. They sent us a POPLA code and here is our draft appeal. Any thoughts? We must submit this very soon, so any feedback is appreciated!

Please look at the last paragraph of section six re: signage as we have put extra detail about the alleged contravention. Should we include this or leave this out? We don't want to shoot ourselves in the foot!

Dear POPLA

Re verification code XXXXXXXX

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.

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 £100 (discounted to £60 if paid within 14 days) for what would have been free parking.


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 and is not a genuine pre-estimate of
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 unenforceable. I would also like 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.

POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' recent loss statement submitted to 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
Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of 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) 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.

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 driving along 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.
They certainly cannot be read without stopping and therefore do not comply with the BPA code of practice. Please see photograph ‘1a’, attached as a jpeg, which evidences this point. 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.’’

Even if the signs were large enough to read by drivers of moving vehicles, it is still not clear which sections of the roads the ‘no stopping zone’ applies to. The driver’s alleged contravention was ‘stopping on a roadway where stopping is prohibited.’ The driver stopped at a ‘give way’ junction leading from a car parking area into a dual carriageway which, by nature, requires a motorist to stop in order to give way to oncoming traffic. Photo ‘1b’ shows the ‘give way’ junction referred to above.


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'.


Yours sincerely,

Coupon-mad

That looks like it covers the bases and it's a recent one too since it includes the Chris Adamson quote.

- This bit should IMHO be in point #3 instead of at the end of point #2:

In addition, VCS have admitted that they "are outside the delivery timescales for maintaining [their] rights to keeper liability", rendering this PCN unenforceable.

- The sentence about VCS v HMRC should be removed as it's old/was appealed so doesn't help:

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.

Northlakes

You also need to report this incident to your local trading standards department.
The old common law offence of 'obtaining pecuniary advantage by deception' is encompassed the Fraud Act 2006.

Fruitcake

I have a couple of minor suggestions, but otherwise it looks very good to me.


Para 4
I wish VCS.


Change this to require.


Para 6
to treated


Change this to to be treated.

Dee140157

And for good measure, I like the signage one. Good clear points in it.