VCS parking notice?

Redx

the 2 most idiotic things to do would be to pay, or to ignore

the CORRECT option is ignore the bribe and get your POPLA appeals in before their expiry dates , using help from the appeal examples in post #3 of the newbies thread

then sit back and wait for 5 to 8 weeks for popla to rule in your favour (rebutting the VCS evidence pack as soon as it comes through just before the rulings)

2 successes at popla will cost VCS £60 , cost you nothing and then you will feel foolish for thinking of the pay or ignore routes

the last thing you want is debt collectors chasing you for those 6 years on 2 invoices , or court action over the 2 unpaid invoices

kill them both at popla , stone dead, then get on with your life

edit:-

use post #3 of that newbies thread and find the VCS permit template (not the airport ones) , then adapt it in notepad

you will see EXACTLY the same advice for 5 invoices in this VCS and gym thread here too

https://forums.moneysavingexpert.com/discussion/5035853

Fruitcake

Tlg1991 wrote: »

a little confused what to put on the template under this part:-

"1. Charge not a genuine pre-estimate of loss
The demand for a payment of £100 (discounted to £60 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner / Landholder. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
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.

VCS’ appeal rejection letter of 19th August 2014 states:
“We consider the amount on the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract and contend that it is not a ‘penalty’ for a number of reasons. We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in managing the parking location to ensure compliance to the stated Terms and Conditions and to follow up on any breaches of these identified. A full breakdown of loss will be provided at the request of a judge, but once again, we would refer you to the outcome of the case: Parking Eye y. Mr Kevin Shelley (2013).”"

should i fill out what it says on my appeal rejection letter?

sorry for being numb i just want to make sure i get it right, never had to deal with anything like this

Just fill in the appeal exactly as it appears in the NEWBIES thread on How to Win at POPLA. There's a clue in the title.

Ignore anything VCS say in their reply. They are trying to scam you out of money so why would you listen to them?

Tlg1991

i got this template, not really sure if it fits, thinking im overthinking things a lot


Dear Sir/Madam,
RE: POPLA XXXXXXXXXXXX
Parking Charge Notice (PCN): XXXXXXXX
Vehicle Reg: XXXXXXXXX
Date of Issue: 18/07/2014
Company in question: Vehicle Control Services Ltd (VCS)

On the above date, I (the keeper of the vehicle) was issued with a CPN for parking without a valid permit at Xercise4Less - Wigan. There were no signs anywhere near the car and no signs were observed on entry to the area. The signage was extremely poor, with there most significantly not being any signs at all around where the car was parked.

I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. Attached to the rejection was the POPLA form and verification code.

I would like to appeal this notice on the following grounds.

1. Lack of signage
2. No contract with the site that permits levying charges
3. Inappropriate parking charge
4. No breach/trespass

1. Lack of signage

There is/was categorically no contract between the driver and Vehicle Control Services Ltd (VCS). No signs were observed. There were no large BPA standard signs when the car park was first entered therefore there was no idea of any alleged contract or restrictions.
There were no signs at all located near where the car was parked.
I require VCS to provide POPLA with evidence that its signage is compliant with BPA rules upon both entry and where the car in question was parked.

2. No contract with the site that permits levying charges

The VCS parking notice states that it has been served on behalf of the landowner. However, I doubt that VCS has the legal status and overriding right to pursue parking charge notices. I therefore require CPP to supply and POPLA to review:

• A copy of the current signed site agreement or contract with the landowner/occupier of that site
• A copy of the wording of the current imposed permit scheme with proof that the landowner has agreed to/been informed about it.
• A current map of all the areas and bays of that car park where the permit scheme is and is not applicable, as agreed with the landowner/occupier.
• Contemporaneous photos of the actual signs on site taken from the view of the driver of a car where the car in question was parked.

Furthermore, I require that the PPC show POPLA proof that they have the right to charge and pursue motorists (including threats of debt recovery and court action).

3. Inappropriate parking charge

The demand for a payment of £85 as noted within the Parking Charge is a punitive amount that has no relationship to the loss that would have been suffered by the Landowner. 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.

I require VCS to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

4. No breach/trespass

If there was no contract, then at most the allegation can only be a civil trespass. This is denied - and indeed the VCS ticket did not mention trespass nor breach, so there is no charge applicable. However, for the avoidance of doubt, if VCS do now try to allege that this is the nature of this 'charge' then the driver would be potentially only be liable for damages owed to the owner/occupier who may have suffered a loss. Since no ‘damage’ occurred in the car park and also given the fact that the car park was not completely full in short time the car was on site, there was in fact no loss at all and this charge is purely a profiteering penalty, out of all proportion.

With all this in mind, I require POPLA to inform VCS to cancel the CPN.

Yours faithfully,

Redx

doesnt look anything like the one I pointed you at, from post #3 link in the newbies thread ( VCS - windscreen ticket - Greenslade etc) see posts #14 and #15

Tlg1991

I was looking at that one first Redx, was unclear if it suited me. wasn't sure where or much much to fill the gaps with respect to this part:-

VCS’ appeal rejection letter of 5th June 2014 states:
“We consider the amount on the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract and contend that it is not a ‘penalty’ for a number of reasons. We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in managing the parking location to ensure compliance to the stated Terms and Conditions and to follow up on any breaches of these identified. A full breakdown of loss will be provided at the request of a judge, but once again, we would refer you to the outcome of the case: Parking Eye y. Mr Kevin Shelley (2013).”

Thereby VCS asserts that the “charge” is actually damages to recover their losses through breach of contract, however not only do I contend that this is in fact a penalty and not a genuine pre-estimate of loss, VCS have also refused to present me with a breakdown of those losses and state they will only provide them at the request of a judge. These losses necessarily being a “pre-estimate” must by nature be already known to VCS and indeed they claim they have already calculated the sum (“...we have calculated this sum…”). If this figure is a genuine pre-estimate of loss as claimed, there can be no genuine reason, commercial or otherwise, for VCS to withhold or refuse to provide these on request, yet as they have both failed and are essentially refusing to provide a breakdown of their pre-estimate of loss I must contend that the quoted figure of £100 cannot be a genuine pre-estimate of loss."


and others like that part as my letter doesn't state my charge is due to losses.

Redx

here is a similar appeal to what you are facing

https://forums.moneysavingexpert.com/discussion/4988661

you could adapt that one by copy and pasting into notepad, then adapt it by replacing the PPC with VCS , the location etc , add any recent popla appeal changes as shown in other recent popla appeals and defined by CM in her newbies thread post #3

then copy and paste from notepad onto here for checking, leaving out the personal info and references, but adding your opening paragraph

Tlg1991

As the registered keeper, I would like to appeal this notice on the following grounds:

1 The Charge not a genuine pre-estimate of loss
2. No standing to pursue charges in the courts nor to make contracts with drivers
3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
4. Signage incapable of being read in the dark - no contract with driver
5. The driver was a bona fide authorised user of the free parking facility
6. Unreasonable & Unfair Charge - a penalty that cannot be recovered


1. The Charge not a genuine pre-estimate of loss

The demand for a payment of £100 or £60 if i pay within 14 days of the parking charge notice issue date is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put Vehicle Control Service Ltd to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. The Notice to Keeper letter refers to 'breach of contract' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event by a driver who was fully authorised to be parked at that site.

The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed.

2. No standing to pursue charges in the courts nor to make contracts with drivers

VCS have no standing as they are an agent, not the landowner. They also have no BPA-compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.

I put Vehicle Control Service Ltd to strict proof of the above in the form of their unredacted contract. Even if a basic site agreement is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between VCSL and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not a managing agent nor retailer nor any facility on site which is not the landholder - and the contract must comply with paragraph 7 of the BPA CoP. Such a contract must show that this contravention can result in this charge at this car park and that VCSL can form contracts with drivers in their own right and have the assignment of rights to enforce the matter in court in their name. A witness statement or site agreement will not suffice as evidence as these are generally pre-signed photocopies wholly unrelated to the contract detail and signed off by a person who may never have seen the contract at all. I insist that the whole contract is required to be produced, in order to ensure whether it is with the actual landowner, whether money changes hands which must be factored into the sum charged, and to see all terms and conditions, restrictions, charges, grace period and the locus standi of this operator.

3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012

The Notice to Keeper is not compliant with POFA 2012, Schedule 4 due to these omissions:
''9(2)The notice must—
(b)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;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''

Where paragraph 9 requires certain wording, it is omitted - except a small amended sentence on the payment slip (which has been found in Council PATAS appeals, not to count as the 'PCN' because it is a separate section, designed to be removed). Also, as keeper I cannot be expected to guess the 'circumstances in which the requirement to pay...arose' because the charge is stated to be based on 'payment not made in accordance with terms displayed on signage'. This so-called outstanding 'payment' is not quantified and the signs do not support that contention (see point 4). The signs also allow a 10 minutes grace period before charges arise. No fee was due so the NTK misstates the alleged contravention and fails to meet the strict requirements of POFA2012..

POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. ''Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the many omissions of statutory wording, it was not properly given and so there is no keeper liability.

4. Signage incapable of being read on entrance to car park- no contract with driver

The sign at the entrance to the car park is multi-coloured, non-reflective, unlit and positioned high up on a pole. The sign was not seen by the driver due to entering the car park from a very busy A road. The sign on the entrance is also on a hill into the car park with very poor visibility over the hill for on coming traffic. If a driver was to be reading the sign it would be a danger to the driver and other motorists.
The BPA CoP at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and “There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''

In addition, the terms & conditions are in particularly small font . The sign's wording is misleading and where there is an unclear or ambiguous contract term, the doctrine of contra proferentem - giving the benefit of any doubt in favour of the party upon whom the contract was foisted - applies. It is up to the company to ensure their terms are clear and unambiguous, otherwise any ambiguity must be interpreted in the favour of the consumer.

5. The driver was a bona fide authorised user of the free parking facility

The driver was a bona fide authorised user of the free parking facility and a member at Xercise4Less using the facilities at the time. Supporting evidence can be provided if required.

6. Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered

The terms that the Operator in this case are alleging gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. There is no contract between the Operator & motorist but even if POPLA believes there was likely to be a contract then it is unfair and not recoverable.

It is unreasonable and an unfair contract term, to attempt to enforce charges immediately (before the car is even parked) in a car park with a 10 minute grace period advertised in the largest font on the sign. It is unreasonable and an unfair contract term, to enforce a charge where the signs are unlit and the actual t&cs, including the risk of a 'PCN' and the amount payable for breach, is unreadable. It is unreasonable and an unfair contract term, to enforce a charge alleging a car arrived at the entrance 3 minutes before 7pm, when any ANPR system will have a manufacturer's advised % failure rate stated within the user manual and there is no proof that the ANPR remote clock was correct.

This charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

In the Unfair Terms in Consumer Contracts Regulations 1999:-
''5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.''

The Office of Fair Trading, Unfair Contract Terms Guidance:
Group 18(a): Allowing the supplier to impose unfair financial burdens
''18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However... a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.''

It has recently been found by a Senior Judge in the appeal court that CEL's signs are not clear and transparent and their charges represent a penalty which is not recoverable. This was in 21/02/2014 (original case at Watford court): 3YK50188 (AP476) CIVIL ENFORCEMENT v McCafferty on Appeal at Luton County Court. I contend that this charge is also not a recoverable sum.

I put VCS to strict proof regarding all of the above contentions and if they do not address any point, then it is deemed accepted.

Yours faithfully

Redx

not proof read it as CEL still features in the points , please edit it and check for any errors, including spelling , location , amounts demanded etc

we should not be having to deal with those basics in any appeal, its the content that people here will guide you on , not basic errors like the above

but a much better try so keep "at it"

Tlg1991

I apologise Redx, i should have been more pedantic before posting, i have edited it i will continue to read through and trough.

i am guessing i should take the end part off about CEL's luton county court appeal as its not VCS. and is there anything similar you know of involving VCS instead i could put in its place.

again extremely sorry for being a pest, this is all very new to me and im not really understanding all the legal things of it and what to put in and take out and replace.

Umkomaas

Where paragraph 9 requires certain wording, it is omitted - except a small amended sentence on the payment slip (which has been found in Council PATAS appeals, not to count as the 'PCN' because it is a separate section, designed to be removed). Also, as keeper I cannot be expected to guess the 'circumstances in which the requirement to pay...arose' because the charge is stated to be based on 'payment not made in accordance with terms displayed on signage'. This so-called outstanding 'payment' is not quantified and the signs do not support that contention (see point 4). There is no payment due for a car parked from 7pm for less than 2 hours and the signs also allow a 10 minutes grace period before charges arise. No fee was due so the NTK misstates the alleged contravention and fails to meet the strict requirements of POFA2012..

Is this factually correct? It doesn't seem to tie in with your description of things in your opening post.

The sign at the entrance to the car park is multi-coloured, non-reflective, unlit and positioned high up on a pole. The sign was not seen by the driver due to entering the car park from a very busy A road. The sign on the entrance is also on a hill into the car park with very poor visibility over the hill for on coming traffic. if a driver was to be reading the sign it was be a danger to the driver and other motorists.

Same question as above.

You just can't blindly copy and paste a previous appeal and merely change the name of the PPC to match your own, without (and this is very important) checking all factual statements are specific to your situation. If you get this 'wrong', it's hardly going to help your case, because the PPC will spot it and make this a major part of their submission to POPLA.

As Redx says, we really don't have the time to fine-toothcomb long appeal texts when the OP appears somewhat less interested in the detail than us. I guess you're lucky we've had time today, given that it's been a bit of a quiet day.

Still it's BH Monday, loads of motorists out and about parking up today, so it's likely to be manic here in a few days time. :rotfl: