Liverpool JLA POPLA appeal

Supertaz81

Hi guys, I have just received a POPLA appeal number for a parking ticket at Liverpool John Lennon Airport and would like some help with the letter. I have a version taken from the forums.
I also would like to know what box to tick in the appeal (online). There are 4;
1. the vehicle was not improperly parked
2. the parking charge (ticket) exceeded the appropriate amount
3. the vehicle was stolen
4. I am not liable for the parking charge.

Lastly, would you submit the letter in the box, or as a separate work attachment? If an attachment, what would you write in the box.

Thanks for your help.

To whom it may concern:
POPLA

Re verification code : xxxxxxxx

As the registered keeper I wish to appeal against VCS and their alleged incident PCN number VCxxxxxxxx, 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 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.

Therefore the parking charge does not represent a genuine pre-estimate of loss and 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' 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.''

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.

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.

Coupon-mad

Yep that will do the job! Just tick all boxes except '3. the vehicle was stolen' and with a long appeal it's best I think to attach it as a word document and write in the appeal box :

Please see attached full appeal letter which ends with the words 'consequently do not comply with the BPA code of practice. VCS are required to show evidence to the contrary.' POPLA please let me know if the attachment cannot be read or if you cannot read down to those final words.

Or you can email it nowadays to [EMAIL="appeals@popla.co.uk"]appeals@popla.co.uk[/EMAIL] I think (you could say the webpage wasn't working)! Obvs you will need the POPLA code in the subject line.

Supertaz81

Thanks for the reply mate. Will let you know how I get on.

Supertaz81

I won my appeal. Here is the response I got.

Reasons for the Assessor’s Determination
On 9 July 2014 the operator issued a parking charge notice to a vehicle with registration mark *******. The operator recorded that the appellant stopped on a roadway where stopping is prohibited.
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.
The operator rejected the representations made by the appellant. With regard to the issue of genuine pre-estimate of loss, the operator argued that the parking charge was liquidated damages. However, the operator stated that the onus was on the appellant to produce evidence as to why it did not reflect a genuine pre-estimate of loss. Further, the operator stated that if the evidence provided by them was insufficient they should be contacted before the appeal was decided. No break down of how they quantified the pre- estimate of loss was provided.
In order to show that the parking charge is not punitive, the parking charge should be shown to reflect a pre-estimate of the loss suffered by the operator as a result of that breach. The onus is on the operator to show this, in particular by providing a cost break down of the genuine pre-estimate of loss.
Contrary to the assertion of the operator, it is unnecessary for the appellant to explain why they believe the charge does not reflect a genuine pre-estimate of loss. All the appellant needs to do is raise the issue and it is then for the operator to prove that the charge reflects the loss. The operator must demonstrate this with reference to an itemised cost break down of the loss. Moreover, it is for the operator to provide all the relevant evidence to POPLA for this appeal to be decided, rather than for POPLA to contact the operator if their evidence is believed to be insufficient.
Consequently, I must decide this appeal on the evidence provided to me. As stated, the onus is on the operator to provide a break down of the genuine pre-estimate of loss. As they have failed to do so, on this occasion the appeal must be decided in favour of the appellant.
Accordingly, the appeal is allowed.
Nadesh Karunairetnam
Assessor

ampersand

Post this great news over on the POPLA Appeals thread too.
It helps others see that this Forum works - and how! :-)

Well done.

Supertaz81

would like to say a big thank you for all the help and advice I got here guys. Much appreciated.