Liverpool Airport PCN received from Vehicle Control Services

Coupon-mad

No point trying.

Toiletduck

OK so this is the proposed IAS appeal, Ive kept it simple compared to some previous IAS appeals but copied the POFA bit from another IAS appeal for Liverpool Airport:

Dear Sirs

Re: PCN No. XXXXXXXXXXXX

I am the registered keeper of vehicle *******

I am in receipt of a Notice to Keeper (NTK) from Vehicle Control Services (UK) Ltd with the above reference number ********

I have responded to this notice and VCS have rejected my appeal and informed me I must now submit a further appeal to the IAS.

I therefore would like to appeal this notice on the following points:

a). The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is a disguised penalty and not commercially justified.

b). As keeper I believe that the signs were not seen, the wording is ambiguous and the predominant purpose of the VCS business model is intended to be a deterrent.

c). There is no evidence that VCS have any proprietary interest in the land.

d). 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.

e). The PCN was issued and the first appeal to VCS rejected on the “reasonable assumption” that the registered keeper was the driver. This is not correct and evidence is submitted with this appeal to prove that the registered keeper could not possibly have been the driver at the time the PCN was issued.

f). There was no consideration nor acceptance flowing from both parties and any contract with myself, or the driver, is denied.

Should this appeal be declined without a name of the independent solicitor who considered this matter then it will be referred to relevant bodies including the SRA; DVLA TS.




Is that OK?

Other thoughts - Ive seen previous comment on the words readable on a sign while driving, worth putting anythign in on that?

Secondly, is there any time limit the IPC places on issuing the PCN, I cant see anything helpful on thier website? I know council ones have something like a 28 day limit? It was 2 months between the date of the "offence" and the date the PCN was issued seems a long time?

Cheers

Coupon-mad

No point in a consumer trying an IAS appeal.

Redx

its always worth putting info in about readable signage from a moving car, which was clearly evident as a problem when watching rip off britain last week for that site

pofa is what determines the dates for keeper liability, but this is non-relevant land so pofa doesnt even apply as far as the RK is concerned , meaning its the driver they should be chasing, if they know who it was, in which case 6 years applies under the small claims court rules

Toiletduck

OK, I thought as previous long and detailed appeals to IAS had failed there was no point going into much detail.

Im a little confused about this POFA 2012.

Let me get this clear:

The argument in d) seems to be that it doesnt apply on airport land and you require POFA 2012 to apply to go after the registered keeper when the driver is unknown.

Therefore in e) we show that the registered keeper could not have been the driver which leaves them with no-one to pursue following d)?

However, and this bit confuses me, why do we need to show that the NKT does not use POFA 2012? If the NKT does not comply with POFA 2012 then why would we use argument d)?

But then we also have the caveat that even if POFA 2012 were to apply 2 months to serve the NKT is not in compliance with the "relevant period" stipulated in POFA 2012.

bod1467

c). There is no evidence that VCS have any proprietary interest in the land. Just because VCS are operating there does not make it an assumption they have authority to operate there - proof must be supplied.

Possible change?

Toiletduck

Coupon-mad wrote: »

Good, this point could win but only if you also make it crystal clear that the NTK does not include (show both sides) any wording from the POFA schedule 4 para 9 and also highlight the fact it was served two months after the event which is far too late for keeper liability = fact. Make sure your proof of being elsewhere is supported by a witness statement as corroboration from a family member/friend as well as any document like a receipt otherwise smarmy git might say 'this could be anyone's receipt and doesn't prove he wasn't driving'.

I've checked the nkt, it doesn't refer to pofa 2012 anywhere but it does seem to include everything stated in schedule 4 para 9 that an nkt should consist of. Am I looking for a specific reference to the legislation?

The "reasonable assumption" wording is only used in the appeal rebuttal, not the nkt.

The witness statement will be by a professional of the type you would have sign a passport photo etc.

Toiletduck

Toiletduck wrote: »

I've checked the nkt, it doesn't refer to pofa 2012 anywhere but it does seem to include everything stated in schedule 4 para 9 that an nkt should consist of. Am I looking for a specific reference to the legislation?

The "reasonable assumption" wording is only used in the appeal rebuttal, not the nkt.

The witness statement will be by a professional of the type you would have sign a passport photo etc.

Actually I missed it, the wording on the nkt front page is:

Should the registered keeper either provide an unserviceable name Nd address of the driver or the named driver denies they were the driver, we may pursue the registered keeper for any parking charge amount that remains outstanding on the assumption they were the driver.

So not pofa 2012 compliant?

Toiletduck

Hi, please see the proposed IAS appeal below.

I have shamelessly borrowed from a recent (unsuccessful) appeal to IAS at Liverpool Airport.

Key changes are highlighted in red. Advice much appreciated especially on the POFA wording.

Additionally, I do not have a photograph of the signs, as we didnt receive the NKT until 2 months after the event and its now getting on for 4 months later I have no idea what the signs looked like at the time.

I think it is very likely they still had BPA logos on them in October.

The appeal rejection letter still claims membership of the BPA weirdly and some friends of ours were stung only a few days earlier but received the notice within a week which even claimed you could still appeal via POPLA.

Should I remove section 1 if I do not have a photo?


Dear Sirs

Re: PCN No. XXXXXXXXXXXX

I am the registered keeper of vehicle *******

I am in receipt of a Notice to Keeper (NTK) from Vehicle Control Services (UK) Ltd with the above reference number ********

I have responded to this notice and VCS have rejected my appeal and informed me I must now submit a further 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 on a side access road to the “Drop off 2” area of the long stay car park. It is worth noting that 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, in this instance there is no loss 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 only pursue the driver and not the registered keeper. Moreover, VCS may only pursue them for the sum of five pounds.

5) NKT not issued in compliance with POFA 2012 “relevant periods”
Furthermore even if keeper liability was to be pursued by VCS under POFA 2012 the NKT was issued over 60 days following the date of the alleged “period of parking” which is not within any of the “relevant periods” that are specified in POFA 2012 to issue an NKT by post to the registered keeper. Therefore the NKT as issued was not in compliance with POFA 2012 anyway.

6) The “Reasonable assumption” made by VCS that the registered keeper was the driver is incorrect.
The NKT (attached) does not include any references to or prescribed wording from POFA 2012 on either side of the document that may attempt to rely on POFA 2012 to find the registered keeper liable and the only basis for VCS to pursue the registered keeper when the driver has not been identified is stated to be "on the assumption that they were the driver." - NKT page 1 para 6 final sentence.

The appeal rejection letter (attached) to myself from VCS also clearly states that they are to continue to pursue myself as the registered keeper of the vehicle "On the reasonable assumption that you were the driver of the vehicle on the date in question unless you are able to prove the contrary". - page 1 para 2 sentence in bold.

This fundamental assumption made by VCS is incorrect and evidence is submitted with this appeal in the form of a signed witness statement and an accompanying set of meeting minutes from the administrator of a meeting I attended that was held outside of Liverpool at the date and time of the contravention as stated on the NKT.

This clearly shows that I could not have been the driver. Therefore as the driver remains unidentified, POFA 2012 does not apply (and even if it did the NKT as issued was invalid) there is no basis for VCS to pursue this matter any further with myself, the registered keeper.

6) 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.

7) 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.

Should this appeal be declined without a name of the independent solicitor who considered this matter then it will be referred to relevant bodies including the SRA; DVLA TS.




Yours sincerely,

bod1467

NTK not NKT. And make sure the acronym NTK is defined ... Notice To Keeper (NTK).

Similarly for other acronyms (except maybe DVLA - everyone knows who they are).