IAS appeal

Jim_AFCB

srs1311 wrote: »

Hi everyone - thanks so much for the advice so far. Just a quick update, I think VCS have upped their game a bit...I re-checked the original NTK I received and they appear to have changed their wording. Instead of going down a breach of terms and conditions that would leave them open to the GPEOL defence, they now say 'PCN issued for alledgedly breaching T&Cs of use of the privately operated access roads for JLA. The t&cs to which the driver agrees to be contractually bound upon entering the site are clearly placed...' etc etc.

They make a big song and dance about this clearly only being against the driver. Am I best dropping the GPEOL defence and going down the not relevant land route. Or maybe I'm best just not bothering at all and ignoring all letters from VCS!

so.. still alleging a breach then...

Coupon-mad

issued for alledgedly breaching T&Cs

As others have said, that's not upping their game! That needs a GPEOL. More importantly do we know if they have changed the signs?

srs1311

Coupon-mad wrote: »

As others have said, that's not upping their game! That needs a GPEOL. More importantly do we know if they have changed the signs?

I must admit, I'm still a novice at all this, I thought including the phrase 'contractually bound' made it harder to fight with GPEOL. I'm in the process of drafting up my appeal to IAS, I'll post it on here before I submit it and hopefully people can let me know if its worded right/good enough!

srs1311

Forgot to say re: signs, thats my next job. Need to take a trip down to JLA to see about the signs, however I know I cant stop anywhere near them to read them/take pictures as all the surrounding roads have no stopping markings on the road ! :rotfl:

BenefitMaster

ezerscrooge wrote: »

BenefitMaster has set up a little sting that you may wish to follow/mirror yourself...

https://forums.moneysavingexpert.com/discussion/5111796

No, I just lent out my car for a few minutes while I visited a coffee shop around the corner. I certainly wasn't driving...

And clearly I can't control what the drive did while I wasn't in the vehicle. :rotfl:

BenefitMaster

srs1311 wrote: »

Forgot to say re: signs, thats my next job. Need to take a trip down to JLA to see about the signs, however I know I cant stop anywhere near them to read them/take pictures as all the surrounding roads have no stopping markings on the road ! :rotfl:

See if this is helpful then.

https://www.dropbox.com/sc/lakqihn6cmat77x/AACD7RMUp7AJLxO47-IBu3W5a

There's no contract being offered - the £100 is clearly for breach of the "no parking or stopping" rules.

bazster

Also, as usual, utterly impossible to read from a moving vehicle.

srs1311

Hi everyone, been very busy with work commitments, but finally got round to writing this appeal out. Thanks Benefit Master for posting the pic, I didnt see this thread till I had revisted the site myself, but it is the same sign :-) Anyway, I've copied and pasted my appeal in below, I know you've all probably read similar many times before but hopefully you have the time to read over it. I've mashed together different things from different people so hopefully it 'flows' okay...

To whom it may concern:
I am the registered keeper of vehicle *******
I am in receipt of a Notice to Keeper (NTK) from Parking Control Management (UK) Ltd (PCM) with the above reference number ********
I have responded to this notice and VCS have rejected my appeal and informed me I must now submit an appeal to the IAS.
I therefore would like to appeal this notice on the following points:

1) Inadequate and Lack of IPC Compliant Signage
The signage was not seen, formed no contract with the driver and furthermore does not meet the IPC guidelines. Terms are only imported into a contract if they are clear and so prominent that the party ‘must’ have known about it and agreed. When VCS rejected my appeal they stated in their letter “it is entirely the motorists responsibility to ensure that they adhere to the terms and conditions” yet no terms and conditions are apparent on the sign upon entering the location. There was only one visible sign approximately 10 feet from a junction. If the driver was to draw up to this junction, it would be natural to look right to see if there was any oncoming traffic, whereas the sign was positioned on the left. The driver would then pull into the road, and already be virtually on top of the sign, giving the driver no time to notice it, let alone read it. Within the IPC Code of Practice Schedule 1 – Signage it clearly states signage should “Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle must be able to see them clearly upon entering the site or parking a vehicle within the site.” Furthermore, due to the high positioning along with the overall small size of text used, the signage is barely legible making it difficult to read and understand. A sign should stand out and alert the driver so they are aware of it – that is not the case here. One would expect to find many different signs at an airport, either with information or warnings, and therefore easily overlooked. Any repeater signs in this area do not face the oncoming traffic and are sporadically placed, if at all, in the location. In addition, the sign that is there is perpendicular to the road, making it impossible for it to be read from a moving vehicle. Therefore the signs are unable to be seen by a driver and certainly cannot be read without stopping. In a line of moving traffic, this would be impracticable, dangerous and would cause an obstruction.
From the Notice to Keeper, VCS state “the terms and conditions to which the driver agrees to be contractually bound upon entering the site are clearly placed at the entrance.” However, from the picture of the sign (attached) there is no contract being offered – the £100 fine is clearly for breach of the “no parking or stopping” rules. Furthermore, from the picture of the sign it can be seen that it doesn't even explain the correlation between the 'no stopping' rule and the 'PCN of £100'. It doesn't say 'failure to comply with the above' - it just has the PCN amount stated below the rest, leaving it open to the driver for interpretation. Although the sign states “no parking or stopping” it doesn’t explain how a driver is meant to determine where this applies – red or yellow lines do not necessarily mean “no stopping” and again, this is left for the driver’s interpretation.
With regards to being “contractually bound,” this is not a transparent contract and is disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem the interpretation that favours the consumer applies. I request IPC to check the Operator’s evidence and signage map/photos on this point and compare the signs to the IPC Code of Practice requirements. I contend the signs in place on this land (wording, positioning, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2].

2) The Charge is Not a Genuine Pre-Estimate of Loss
VCS has attempted to avoid the necessity of having to justify a pre-estimate of loss by stating that this is a contractually agreed fee on their Notice to Keeper. However, on the Notice to Keeper, VCS states that the charge is for ‘breaching’ the terms and conditions of parking.
The terms are misleading with wording that dresses up the charge as a ‘contractual’, which it is not. There was no agreement to pay. No consideration/acceptance flowed to and from both parties, so there was no contract formed.
The charge of £100 is being sought for an allegedly breaching the terms and conditions to which a driver is contractually bound, namely “stopping on a roadway where stopping is prohibited” consequently I contend, and the IPC Code of Practice states, that a charge for breach must be based on the genuine pre-estimate of loss. The Office of Fair Trading has also stated that a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. On the day in question there was neither damage, nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the operator, or the landowner, by any alleged breach.
The vehicle was stopped momentarily, and for no longer than 20 seconds in total. It is worth noting that there is a £2 charge to park for up to 20 minutes within the Express Drop Off & Pick Up car park and alternatively, drivers can park for up to 20 minutes free of charge within the Drop Off 2 car park. In the case of Parking Eye v Smith in Manchester County December 2011, the judge rules that the only amount the operator could claim is the amount that the driver should have paid into the machine. Therefore, the maximum ‘loss’ is £2 and it is clear that with the parking charge, no consideration has been given to any genuine pre-estimate of loss. In this case, as stated earlier, no monetary loss occurred to either the operator or to the landowner. I therefore require the operator to submit a full breakdown of their genuine pre-estimate of loss to show this was calculated in this particular parking area and for this particular alleged breach. Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Office of Fair Trading - Unfair Terms in Consumer Contract Regulations 1999, (this is available on the OFT website as oft311.pdf) where it states that parking charges for breach on private land must not exceed the cost to the landowner during the time the Motorists is parked there and remind them that the amount in this case is nothing. The operator will no doubt state loss was incurred as a result of the appeals process after the parking charge notice was issued, but in order for this to represent a genuine pre-estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach. This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier – there was no initial loss.
I would also cite the following from the Office of Fair Trading, “The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option”. “The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term, or which purports to define what the consumer is buying, will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term”.
The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither commercially justified or proved to be a genuine pre-estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.
3) Not Relevant Land
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. Not only that, since the byelaws set an amount of penalty for failure to comply with them; a further amount based on your own assessment is unlawful at best and perhaps even fraudulent.
A set of the byelaws are held by Liverpool City Council, which sets out the airport’s stance on roadway use, or misuse. It also lays down a penalty upon summary conviction for a breach of the byelaws of £5 for the 1st offence and a further amount of 40 shillings for a continued daily breach.



I put it to you that these byelaws govern the airport’s penalty regime for the alleged contraventions you are enforcing. In fact there is no penalty for stopping at the roadside. There is no offence committed so there can be no penalty unless it can be proven in a magistrate’s court that this action amounted to a failure under para 14: “Driving or placing a vehicle carelessly or dangerously or without due consideration for persons using the airport.” Following this, Para 18 gives notice that a “failure by the driver of a vehicle to comply with any direction for the regulation of traffic given by a constable or any person acting on behalf of the council or a traffic sign” will be subject to the penalty regime of the aforementioned £5 plus 40 shillings per day afterwards.
POFA 2012 therefore does not apply, and VCS may therefore only pursue the driver and not the registered keeper. Moreover, you may only pursue them for the sum of five pounds.

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 are in breach of this and have 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' above). 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.






Yours sincerely,


Let me know what you think!

Coupon-mad

That's fine as long as you can prove everything with attachments - signage pics, scan of BOTH SIDES of the NTK, etc. otherwise it all gets disregarded by PompousGitsRUs. And if you can, a witness statement to corroborate that the keeper was not driving that day, signed by someone who says where the keeper was, at that time on that day.

Parking-Prankster

I am very interested in this case, and am waiting to see if the IPC is a complete sham or still retains any vestiges of credibility.


I don't have any current signage info and don't know whether the signs have changed since VCS joined the IPC. However, the following will be true if the general design principles are unchanged.


The font size used on the signs is 13mm. The legal eyesight requirement for driving is to to read a car numberplate (75mm) from 20m. Thus 13 mm must be readable from 3.5m away.


However, the DFT traffic signs manual, chapter 2, gives examples on how to determine when a driver will stop reading a sign, which is when they turn their head 10 degrees. For a lane 4m wide this is 23 metres.


Thus the sign is never readable.


In addition, at driving speed, the number of words assimilated by a driver is given by this same document as 6.


Any attempt to pretend a contract is in place is laughable.