VCS parking notice?

Coupon-mad

Tlg1991 wrote: »

i was using the VCS template then was told to use the CEL template...

as for point 3 i had already taken that out. But ill just go back to what i was looking at in the first place and adapt it.

as for the guy being charge £10 he refused that and they have written back charging him full price again as he refused to play the £10 also.

Glad to hear it - tell him to use the VCS template for non-Airport cases as his base as well. Both of you working together should be able to come up with a decent POPLA appeal from that template. You could even use exactly the same words as each other and you would both still win, because the VCS non-Airport example in the newbies thread is hot off the presses, very recently written - and a winner.

Tlg1991

I wish to appeal against the PCN notice on the following grounds:

• The charge is not a genuine pre-estimate of loss
• Lack of proprietary interest in the land.
• Inadequate Signage - No Contract with driver

The charge is not a genuine pre-estimate of loss

The parking charge demanded is disproportionate and punitive as it far exceeds any cost to the landowner or VCS for any purported breach of contract. As liquidated and ascertained damages must be calculated in advance; a full breakdown of costs incurred as a consequence must be justified by VCS, which should be calculated as flowing directly from this alleged breach of parking event. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.
It has been noted that VCS have submitted various versions of their loss statements to POPLA in the past – with itemised amounts relating to their business running costs, versions 1.4 and 1.8 and December 2013 all of which contain different variances but amount to justifying the same parking charge amount. This can clearly be shown that VCS cannot justify the costs of their parking charges as a genuine pre-estimate of loss.
Also included in their pre-estimate of loss are staffing costs for dealing with POPLA appeals and a proportion for pursuance of unpaid parking charges and debt recovery costs.
In every case POPLA has ruled that these costs are business running costs not related as pertaining to any one alleged breach of parking terms. Staff would be salaried regardless of how many people appealed and on VCS website it claims that their customer service staff also deal with queries regarding permit allocations, payments and car parking queries. Furthermore appealing to POPLA is free for the motorist – thereby no costs can be attributable.
POPLA has also adjudicated that the costs relating to debt recovery cannot be included as indeed these are alleged futuristic costs which may not occur and not relevant whilst considering this appeal.
VCS are now trying to justify their by reasoning that their costs have been calculated over all their sites over a period of a year. I totally refute that this is an accurate or realistic method and certainly cannot be used as a calculation for pre-estimate of loss for this particular alleged breach. Every car park is different and as appellant, I cannot be held liable for costs for parking charges which have been issued to other motorists at other sites.
Contract law is quite clear on this that ascertained and liquidated damages for alleged breach of contract must be shown to be calculable as flowing from the particular point of breach.
VCS have been further requesting that if the parking charge be deemed a penalty then this is allowed on the basis of commercial justification and cite various case laws on their sheet.
There is no facility within the code of practice for car parking operators to set out their terms for parking on the grounds of commercial justification and seeking recompense for a penalty as an alternative ground for breaching contract terms.
There is no precedent case law for a legally imposed penalty on the grounds of commercial justification between a company (in this case a parking company) and an individual (motorist). The high court rulings to date have all been between companies who are considered to have equal standing and these are individually negotiated and drawn up contract terms. There is no comparison between a sign in a car park whose terms and conditions are determined by the parking company and a driver who enters the car park.
It cannot even be deemed appropriate to impose terms simply by the act of parking as this would rely upon a motorist firstly being aware that there was a car park management operator on the site by an appropriate means of alerting the driver upon entering. It is my contention that signage terms are not adequately positioned to alert the driver to specific terms of parking.
Furthermore, it is the landowner who confers the right to park and invites motorists on his land – third party transfer obligations are applicable where pre-existing contractual obligations prevail to offer car parking from the landowner to motorist on pre-existing terms. VCS do not have any proprietary or title to the car park in question and cannot confer this right or impose new conditions on parking, which have not been agreed between the motorist and landowner.
VCS cite as an example:
An example of this would be in a simple wholesale supply contract as follows. 'Company A', provides goods at wholesale prices to 'Company B', for the price of £500 every month. 'Company B' can show that, from the sale of those goods, it would generate £1,500 income in a month. Should 'Company A', default, compensatory damages would be £1,500 assuming the £500 had already been paid in advance as 'Company A', is liable to place 'Company B', in the same position it would be in had the breach not occurred. It is obvious that a loss of £1,000 in this scenario (£1,500 compensation less the £500 paid up front) would deter further breaches. If the loss was limited to £500 (cost of goods), there would be no incentive to ensure compliance with the contract; which is the desired result.
Therefore, the doctrine of compensatory damages has the dual purpose of compensating the innocent party and deterring the offending party from committing further breaches.
This clearly is totally not applicable and cannot be compared between any offer to park and terms imposed by VCS. There is no offer or consideration of equitable value and car parks vary in the light of free car parking and pay and display terms. In the latter it is the landowner who normally retains the car park revenue from payment and not the car parking operator. The very essence of the car park management business is solely dependent upon motorists breaching terms and conditions they impose in order to raise revenue and profit. This is further expanded by the fact that car park operators offer their services and equipment free to the landowner/client whilst portending to offer a service. In normal business relations such as engaging a service provider for example a plumber payment would exchange hands. It is also a wide spread occurrence that car parking companies offer a percentage of car parking charges collected. This can be construed as a serious incentive or even a bribe to offer free car parking management.

The company accounts can also support that this is a revenue generating scheme and clearly not supportive of any recompense repayment of any alleged loss incurred.
VCS are including the recent court case relating to:
HHJ Maloney's decision in Parking Eye v Beavis & Wardley
There is a contention that this is a flawed decision which is being appealed. The ruling is not binding and can be disregarded as it is merely a county court decision and there is no basis for commercial justification to date between an individual consumer and a company as stated above.
HHJ Maloney also specifically states in his opening statement that the decision would only be relevant or considered to be relevant for that particular car park with the current signage in situ.
It is also known that the free parking time granted for that car park was reduced from 3 hours to 2 hours and that Parking Eye were likely to have instigated that reduction in order to generate more income and revenue from the issuance of parking charges. A quick turnover of car parking spaces also cannot be realistically seen as equating to obtaining genuine customers at any particular site. In fact a motorist overstaying a free parking period and spending at retail outlets is generating more wealth for the landowner and retailer in question. By leaving on time also there is no evidence that that particular car parking space would be filled by another prospective customer.
This parking charge must be considered an unlawful penalty by default as there can be no legal basis for this charge to stand either for breach of contract or a penalty for commercial justification.

Lack of proprietary interest in the land.

It is my assertion that VCS has not demonstrated that they have sufficient proprietary interest in the land in question which grants VCS any legal possession or entitlement to offer parking spaces, let alone allege a contract with a third party customers of the lawful landowners/occupiers.
In addition VCS's lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. It is my belief that there is no contract with the landowner/occupier that entitles VCS to levy and pursue any parking charge through the courts in their own name as creditor. It is my assertion that this VCS has no legal standing to offer any contract to park to the driver on this site, and no authority to issue parking charge notices (PCNs), which should be compliant with the BPA Code of Practice. Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012 and this parking charge is unrecoverable from either the driver or registered keeper at this site. A full un-redacted contract with the landowner is therefore required to demonstrate that VCS has the requisite locus standi to operate and pursue parking charges as creditor through the courts.

Inadequate Signage - No Contract with driver

In the event that the VCS demonstrates that they do have sufficient locus, it is my assertion that the driver on the day was not sufficiently alerted to any parking management and terms due to inadequate signage which is non-compliant the BPA Code of Practice. Therefore no contract was made between the driver and VCS as the basic criteria for making a contract have not been fulfilled (offer/consideration/acceptance).

Coupon-mad

Yep that should do the job - I like to read a different one and there's quite a lot there! It's still not based on the one I said which is this:

https://forums.moneysavingexpert.com/discussion/comment/66245932#Comment_66245932

However, your version will be enough for the appeal I would say, seeing as you cannot say 'the NTK was flawed and there's no evidence the NTD was served' (because you already blew that appeal point away when you appealed early as driver!).

Keep your eyes peeled for an email before POPLA make their decision, which will be VCS 'evidence'. Best to rebut everything they say - to find people discussing emailing a rebuttal to POPLA once they got their evidence from VCS, search this forum for the keywords 'VCS GPEOL rebuttal' as much has already been said to help you at that point, so you get the final word and win.

wigannwuk

Wouldn't be xercise4lessin Wigan would it?
Ive been working away so starting my appeal with a template this week.

Tlg1991

It is the one in wigan, yes.

found out the head of the company got one when he visited the wigan gym as well. he has said to just ignore it and they are trying to get VCS off there land but its not straight forward at the minute because they are in a contract to lease VCS the land and they have to wait till that's finished.

wigannwuk

Interesting development, which idiot at xercise4less signed that contract.
I knew they would be making money out of that. I've got the local papers interested.

Dee140157

If you have the newspapers involved then that little gem that the head of the company got a PCN should be popped over to them straight away.

Imagine the headline

CEO gets "fined" for visiting his own company!

Yes I know it's not a fine, but this is a local rag. Email them that information straight away and this gives them something juicy to hang the story on!

If you can tell them is name so much the better. Easily googled I expect..

wigannwuk

im waiting for him to ring me back!!

im intouch with another member who is having their picture taken outside the gym today..haha

doesnt change anything but i was never one for rolling over.

The gym manager is an idiot also , you would think he would want to keep his members... he didnt care whatsoever.

so ill be leaving

Tlg1991

Turns out Xercise4Less have scrapped VCS and they no longer have anything to do with that place (the wigan one anyway)

The signs are still up but the staff inside told me i don't need to sign my car reg in anymore last time i went.

don't know if this means all the PCNs are scrapped. I think the gym found VCS to be breaching there agreement of some sort and got there lease on the land stopped.

Coupon-mad

VCS will NOT have cancelled any PCNS already in play.