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POPLA appeal VCS Liverpool John Lennon Airport JLA
Mistermeaner
Posts: 3,015 Forumite
Hi All
VCS rejected my appeal that I sent directly to them. Following instructions in the NEWBIE thread I have checked my POPLA code and confirm its valid (until mid sep so plenty of time).
I believe the next step is to draft my POPLA appeal which is basically a copy and paste from this site because of previous success; for completeness I would appreciate if you guys could check the text below and ensure all OK before I send:
***************************
Dear POPLA
Re verification code XXXXXXXXX (will add this)
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' 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
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 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'.
Yours sincerely,
ME
VCS rejected my appeal that I sent directly to them. Following instructions in the NEWBIE thread I have checked my POPLA code and confirm its valid (until mid sep so plenty of time).
I believe the next step is to draft my POPLA appeal which is basically a copy and paste from this site because of previous success; for completeness I would appreciate if you guys could check the text below and ensure all OK before I send:
***************************
Dear POPLA
Re verification code XXXXXXXXX (will add this)
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' 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
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 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'.
Yours sincerely,
ME
Left is never right but I always am.
0
Comments
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Looks good to me.Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.0
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Thanks, will send via popla website in due course
Out of interest why do vcs bother with rejecting my appeal and popla if it is so cut and dry they will lose, they must recognise the text of my appeal letter and you would have thought someone would twig that here comes another mse forum user, no point fighting this one!
Off topic question as well, does anyone know how to turn off the auto predictable text on a kindle - it is the most annoying unnecessary thing in the world. Apart from com's (I typed pcn' s - see what I mean)Left is never right but I always am.0 -
Good question, as some PPCs have the good sense to know a loser when they see it. PE also reject even obvious forum-assisted appeals where the POPLA appeal is likely to be upheld.Out of interest why do vcs bother with rejecting my appeal and popla if it is so cut and dry they will lose, they must recognise the text of my appeal letter and you would have thought someone would twig that here comes another mse forum user, no point fighting this one!
Maybe they've done the stats, and discovered that enough of such initial appeals do not result in POPLA losses for them (e.g. POPLA appeal never submitted, or fouled up in some way) that's it's worth some £27 losses.
Or maybe the more likely answer is they are both stupid and arrogant. Yes, that'll be it.0 -
appeal submitted, I ticked all boxes apart from the 'stolen' one.
Received the confirmation email that quoted all my appeal text back to me
Assume that's it for now then? Popla offered for me to submit 'evidence' via email on online but I assume the text I sent is enough.
I'll let you know how it goes.
What a waste of my time, and I imagine public money - the Popla website should contain a link to this forum which is 1000 times more helpful than any of the info provided there.
Thanks all for help.Left is never right but I always am.0 -
ASVCS are well aware that you did not park, and that POFA does not not apply at this airport, you would be perfectly within your rights to complain to Trading Standards that this is an attempt to obtain monies by misrepresentation.
I am sure the Luton Trading Standards are familiar with this scam.You never know how far you can go until you go too far.0 -
How did you get on with this appeal? Have you had a decision yet? I am in the process of appealing for stopping for 4 seconds am being fined £100!0
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It is too soon for the OP to have had a reply to his/her appeal.
If you need an appeal for POPLA this is a good one to send if you followed the advice in the newbie thread for the initial appeal.
If you have any questions, please start your own thread though. However there are. Plenty of VCS appeals to be found here though.Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.0 -
You are not being fined and everyone here wins with POPLA appeals about Airport PCNs. Why don't you just use the 'Forum Jump' button (bottom right) to hop to page one and read the sticky FAQs threads at the top? Easy as pie, template winning appeals are shown there.How did you get on with this appeal? Have you had a decision yet? I am in the process of appealing for stopping for 4 seconds am being fined £100!PRIVATE '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 -
0
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Hi All
Received an email from VCS to Popla, cc to me, with a 14.7MB zip file attached.
In there is basically lots of words and photos, of signs at the site, a map, and their rebuttal of my popla submission.
Won;t bother copying here unless anyone thinks its of value, also I have not been asked for anything so don't intend to respond at the minute; if I am doing anything wrong please advise.
Warning to others; this email went into my junk (which I rarely check) its only because I am waiting for another email that I happened to look in there.
I presume this is standard fodder from VCS and that I am correct in doing nothing for now. Please advise if different.
ThanksLeft is never right but I always am.0
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