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POPLA appeal letter for stopping at John Lennon Airport
markyb0y2006
Posts: 6 Forumite
Can someone please check my POPLA appeal for stopping at John Lennon Airport. My appeal to VCS was rejected and I received the letter today. See my proposed appeal letter below :
To whom it may concern:
POPLA
Re verification code : xxxxxxxxxxxxxx
As the registered keeper I wish to appeal against VCS and their alleged incident PCN number VCxxxxxxxxxx, based upon consideration of the following:
1) The amount demanded is a penalty and not a genuine pre-estimate of loss.
2) This was not Relevant Land as defined under POFA 2012; no registered keeper liability.
3) VCS are not the landowner and do not have the standing to offer contracts nor to bring a claim for trespass.
4) No contract with driver
5) Non-compliant ANPR 'hidden camera van' at this location which is not a car park
6) The alleged contravention did not take place
7) The notice to keeper does not contain the required information as per The Protection of Freedoms Act 2012
8) Misleading And Unclear Signage
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.
The BPA Code of Practice states:
“19.5 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 suffer.
19.6 If your parking charge is based upon a contractually agreed sum,that charge cannot be punitive or unreasonable."
POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement,such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such 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 excessive and unenforceable.
2) This was 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) No landowner contract nor legal standing to form contracts or charge drivers
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.
4) 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. A driver could not stop in order to read the signs as they enter the road as then 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.
5) 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'.
6) 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.
7) The notice to keeper does not contain the required information as per POFA 2012
Schedule 4 paragraphs 8 and 9 of the POFA stipulate the mandatory set of information that must be included on the notice to keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.
The Parking Charge Notice issued to me and attached to this appeal does not:
a. Stipulate the period the car was parked (start and end times)
b. Identify the “creditor” who is legally entitled to recover the parking charge.
The wording of Paragraph 9(2)(h) of Schedule 4 of POFA indicates that the ‘creditor must be identified’. To “identify” a “Creditor” VCS must do more than name that person. The driver is entitled to know the identity of the party with whom he has been legally contracted.
8) Misleading And Unclear Signage
The signs at this location do not comply with road traffic regulations or their permitted variations and as such are misleading. VCS’s signs are in the style of a commercial venture and similar to the myriad of commercial ventures along Speke Hall Avenue. Because the signs are not in the style of a standard road sign there is nothing to draw a driver’s attention to them. They could be an advert to one of the local hotels, for example. I would also contest the VCS signs are not positioned correctly. It is the case that there is a ‘No entry to coaches’ sign a few yards before the VCS sign on the driver’s side of the road. Any driver would have a split second to for his attention to move from the ‘No Entry’ sign to VCS’s sign containing six sections of information. I would hope that the assessor can see this is not humanly possible.
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.''
If VCS intend this apparently private road to be treated by drivers as an urban clearway then the signs and terms used must be compliant with the Traffic Signs Regulations and General Directions (TSRGD) 2002 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. Repeater signs in this area are located in the area of the car parks, do not face the oncoming traffic and are not positioned where the driver in this instance would have seen them. Therefore they were unable to be seen by the driver and certainly could not be read without stopping, and consequently do not comply with the BPA code of practice. VCS are required to show evidence to the contrary.
To whom it may concern:
POPLA
Re verification code : xxxxxxxxxxxxxx
As the registered keeper I wish to appeal against VCS and their alleged incident PCN number VCxxxxxxxxxx, based upon consideration of the following:
1) The amount demanded is a penalty and not a genuine pre-estimate of loss.
2) This was not Relevant Land as defined under POFA 2012; no registered keeper liability.
3) VCS are not the landowner and do not have the standing to offer contracts nor to bring a claim for trespass.
4) No contract with driver
5) Non-compliant ANPR 'hidden camera van' at this location which is not a car park
6) The alleged contravention did not take place
7) The notice to keeper does not contain the required information as per The Protection of Freedoms Act 2012
8) Misleading And Unclear Signage
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.
The BPA Code of Practice states:
“19.5 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 suffer.
19.6 If your parking charge is based upon a contractually agreed sum,that charge cannot be punitive or unreasonable."
POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement,such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such 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 excessive and unenforceable.
2) This was 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) No landowner contract nor legal standing to form contracts or charge drivers
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.
4) 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. A driver could not stop in order to read the signs as they enter the road as then 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.
5) 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'.
6) 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.
7) The notice to keeper does not contain the required information as per POFA 2012
Schedule 4 paragraphs 8 and 9 of the POFA stipulate the mandatory set of information that must be included on the notice to keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.
The Parking Charge Notice issued to me and attached to this appeal does not:
a. Stipulate the period the car was parked (start and end times)
b. Identify the “creditor” who is legally entitled to recover the parking charge.
The wording of Paragraph 9(2)(h) of Schedule 4 of POFA indicates that the ‘creditor must be identified’. To “identify” a “Creditor” VCS must do more than name that person. The driver is entitled to know the identity of the party with whom he has been legally contracted.
8) Misleading And Unclear Signage
The signs at this location do not comply with road traffic regulations or their permitted variations and as such are misleading. VCS’s signs are in the style of a commercial venture and similar to the myriad of commercial ventures along Speke Hall Avenue. Because the signs are not in the style of a standard road sign there is nothing to draw a driver’s attention to them. They could be an advert to one of the local hotels, for example. I would also contest the VCS signs are not positioned correctly. It is the case that there is a ‘No entry to coaches’ sign a few yards before the VCS sign on the driver’s side of the road. Any driver would have a split second to for his attention to move from the ‘No Entry’ sign to VCS’s sign containing six sections of information. I would hope that the assessor can see this is not humanly possible.
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.''
If VCS intend this apparently private road to be treated by drivers as an urban clearway then the signs and terms used must be compliant with the Traffic Signs Regulations and General Directions (TSRGD) 2002 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. Repeater signs in this area are located in the area of the car parks, do not face the oncoming traffic and are not positioned where the driver in this instance would have seen them. Therefore they were unable to be seen by the driver and certainly could not be read without stopping, and consequently do not comply with the BPA code of practice. VCS are required to show evidence to the contrary.
0
Comments
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Looking good.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.
Get rid of this, it is out of context, even though it refers to VCS, but in any case, it went to appeal and was overturned - it's not helpful to you at all.
From a presentational point of view I would embolden each of the appeal point headers and create a line space between the header and the commencement of the following paragraph.
As you only received your rejection today there's some time left before the POPLA deadline to get this away, so leave it up here for 24 hours to see if any other regular might want to comment.
When you send it off (via the POPLA appeals portal on their website) you tick 3 of the 4 reasons for appealing (obviously not the 'stolen vehicle' one).
Just as a quick afterthought - have you checked your POPLA code validity against the code checker?
http://www.parkingcowboys.co.uk/popla-code-checker/
HTHPlease note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Looking nice. I agree with you completely.0
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Thanks Umkomaas
I have submitted my appeal just now. I'll publish my results once I get them.0 -
Quoted from the appeal letter from POPLA (Operator: Vehicle Control Services Ltd at John Lennon Airport)
"The appellant made many representations; however, I shall only deal with the ground upon which the appeal is being allowed. Specifically, the appellant submitted that the charge did not represent a genuine pre-estimate of loss. The implication of this submission is that the parking charge is in fact punitive."
Huge thanks to all the people who take the time and trouble to help others fight against this truly corrupt business model. Particularly Umkomaas.
:beer:0 -
It has occurred to me that I have actually suffered losses in my time and energy defending against this clearly unjust and corrupt business.
Does anyone know how I could claim against them using the small claims court for 1 x myDayRate (im a contractor) in time spend dealing with this matter and distress etc?
If anyone can point me in the right direction I would greatly appreciate it.
TIA0 -
Did you inform them that you may claim your expenses back in the initial appeal/challenge?
Did you also inform the aiport that you would claim against the aiport as well should their agents continue?
JLA are equally responsible for this, there have been numerous successful appeals against these charges and yet they ( JLA) do nothing but allow this situation to continue and VCS are allowed to carry on with what could be argued is nothing more than a scam.From the Plain Language Commission:
"The BPA has surely become one of the most socially dangerous organisations in the UK"0 -
Did you inform them that you may claim your expenses back in the initial appeal/challenge?
Did you also inform the aiport that you would claim against the aiport as well should their agents continue?
JLA are equally responsible for this, there have been numerous successful appeals against these charges and yet they ( JLA) do nothing but allow this situation to continue and VCS are allowed to carry on with what could be argued is nothing more than a scam.From the Plain Language Commission:
"The BPA has surely become one of the most socially dangerous organisations in the UK"0 -
You could bung them an invoice (call it a 'PCN' = Personal Costs Notification!) and then a Letter before Claim if they don't pay by the time you stipulate. Then follow the LBC with a MCOL claim for a set amount like Derek Donovan did v NGP, see POST #15 here showing his cheque:
http://forums.pepipoo.com/index.php?showtopic=89127&hl=donovan
http://parking-prankster.blogspot.co.uk/2013/10/parking-company-pay-motorists-pcn.html
and another guy did against Vinci Park:
http://parking-prankster.blogspot.co.uk/2013/10/parking-company-ordered-to-pay-motorist.html
and BikerPaul on pepipoo still has a case v ParkingEye for his costs, AFAIK:
http://forums.pepipoo.com/index.php?showtopic=85641
Nowt to lose except a small claim fee if you don't win. See this:
http://www.justice.gov.uk/downloads/courts/mcol-quickstart-guide.pdf
HTHPRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
markyb0y2006 wrote: »It has occurred to me that I have actually suffered losses in my time and energy defending against this clearly unjust and corrupt business.
Does anyone know how I could claim against them using the small claims court for 1 x myDayRate (im a contractor) in time spend dealing with this matter and distress etc?
If anyone can point me in the right direction I would greatly appreciate it.
TIA
You spent a whole day with the appeal?
Get real.0 -
Thanks Coupon-mad, will look into this.
arcon5 I spent half a day minimum just researching the law, my rights etc on the internet. Do you have anything constructive to add?
Personally I just think there should be some downside risk for dodgy parking companies in issuing these tickets.0
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