Parking charge notice from VCS - Liverpool John Lennon Airport

exboyracer

Hi Again,
I'm in the middle of drafting my complaint to the IAS regarding this 'charge'

Looking through a sample of other forum members' letters that have been sent previously, there is mention of POFA specifically being quoted in the PCN letter, for example:

‘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.'

I suspect that VCS have cottoned on to this, and are now not mentioning this legislation. Certainly in the PCN I received there is no mention of POFA, or in fact any specific legislation I may have been in breach of!


Can I still use POFA as a rebuttal in my complaint letter, or is this no longer valid due to the PCN not specifically mentioning it?

exboyracer

OK, so the following is the appeal letter I have sent to the IAS:

18 January 2015
Dear IPC

Re

Vehicle Registration Mark
Site No VEH0011
Date PCN Issued

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) 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 ten minutes in the Liverpool John Lennon Airport pick up / drop off car park costs £2; the alleged contravention lasted seconds, which is significantly less than ten minutes and Vehicle Control Services Ltd (VCS) are demanding payment of £100 (discounted to £60 if paid within 14 days).
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 vZambia [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 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.

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).

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) Unclear signage.
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 IPC 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 IPC code of practice, part B contains the following:
3. Automatic Number Plate Recognition.
3.1 You may use ANPR technology to identify the keeper of a vehicle for the purpose of issuing a notice to keeper in accordance with schedule 4 of the Protection of Freedoms Act 2012.
3.2 Where ANPR technology is used, this must be clearly stated using appropriate signage. You must tell drivers what information will be captured and what this information will be used for.
3.3 ANPR equipment must be maintained and calibrated appropriately to ensure accuracy so as to ensure that keeper data is not applied for without proper grounds for doing so. Where
there are manufacturer’s guidelines for the maintenance of equipment then this should be
followed.
3.4 You must ensure that there are appropriate manual checks in place in order to ensure that correct registration details are used in order to obtain keeper details from DVLA.
3.5 If you use ANPR technology you must ensure that the data that you obtain and process is
used, stored and disposed of appropriately.
Furthermore, Part C of the IPC code of practice contains the following:
1.6 Where keeper details are provided to you by the DVLA, they must only be used for the purposes for which they were disclosed to you.

At this location, I contend that VCS have failed to meet the requirements of all of the above points in the IPC Code of Practice.
VCS 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 IPC 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'.


Yours sincerely,

The_Deep

What did the invoice say about v.a.t.?

This matters because, if the signs tried to tie you into a contractual agreement that, if you did so and so, you have agreed to pay £xxx, then that payment attracts v.a.t.

If however they are claiming damages for breach of contract then no v.a.t. is payable, but those damages can only be an estimate of the losses which they incurred as a result of your actions, which in this case are £nil

It would be very interesting to see how the IAS adjudicator deals with this one, I suspect that they will dismiss it out of hand, but not give a reason, (all grist to the mill).

Further reading

https://forums.moneysavingexpert.com/discussion/5033796=

exboyracer

VAT is not mentioned anywhere on either of the pieces of correspondence i have received from VCS.

The_Deep

It is not therefore a contractual charge and you can cite GPEOL

exboyracer

Hmmm, so the predictable has occurred. Ironically their email was stuck in my spam folder so I've only noticed it today while doing a spot of housekeeping.

Any comments on the following?

copy & paste from their email received 5th Feb 2015:

The Independent Appeals Service (IAS) has received a decision from the Independent Adjudicator regarding your recent appeal. Please see below for the full details.

Parking Charge Number (PCN): [redacted]
Vehicle Registration: [redacted]
Date Issued: 17/12/2014

Appeal Outcome: Dismissed

The Adjudicators comments are as follows:

"The appellant challenges a claim made against him by the operator responsible for parking at Liverpool John Lennon Airport. The operator's claim is permitted under the Protection of Freedoms Act and seeks to recover from the appellant a debt incurred by the driver of the appellant's car. The operator's claim is made in contract and alleges that the driver agreed to pay a charge by stopping in a restricted area.

Although the appellant was not the driver at the time, he is entitled to argue against the basis on which the operator makes its claim. He relies on seven heads of appeal. I will deal with them in turn:

1) Amount demanded is a penalty not a genuine pre estimate of loss.

There is no doubt that the amount demanded by the operator has a degree of deterrence to it and might be described as a penalty. It is not based on any loss suffered by either the landowner or operator. However, in my view it is neither improper in its purpose nor manifestl y excessive in its amount. It is commercially justifiable. The supply of parking at an airport is a limited and valuable commodity and the charge properly reflects, in my view, the premium placed on the approach road by users of it. This approach to private parking contracts has been approved in the persuasive authority of Parking Eye v Barry Beavis (Cambridge County Court Claim no. 3JD05152).

2) The alleged contravention did not take place.

I have viewed the cctv evidence and I am satisfied that the appellant's car was stopped on the red route.

3) Not relevant Land under Protection of Freedoms Act 2012; no registered keeper liability.

I am satisfied that the approach roads to the airport are relevant land within the meaning of POFA.

4) No landowner contract nor legal standing to form contracts or charge drivers.

This is not required. The contract was between the driver of the appellant's car and the operator. I am satisfied that there was valid offer and acceptance.

5) No Contract with driver.

I have addressed this in 4 above.

6) Unclear signage.

I am familiar with the placement and content of the signage at LJL. I have also reminded myself by looking again. The terms could not be clearer in my view.

7) Non-compliant ANPR 'hidden camera van' at this location which is not a car park.

How the operator enforces its contract, whether by parking attendant or cctv camera, is a matter for the operator and does not invalidate its claim.

Having considered each of the appellant's arguments, I am satisfied that they are without merit. The appeal is therefore dismissed."

As your appeal has been dismissed, the Independent Adjudicator has found, upon the evidence provided, that the parking charge was lawfully incurred.

As this appeal has not been resolved in your favour, the IAS is unable to intervene further in this matter.

The Operator must now allow you 14 days to make payment before they commence any action to enforce the charge.

Should you continue to contest the charge then you should consider obtaining independent legal advice.

Yours sincerely
The Independent Appeals Service

DoaM

2) Has he really viewed the CCTV footage? Really? Have you been provided with a copy?

Does the footage include unredacted coverage of anyone else? (Massive DPA breach there if yes).

4) Dear VCS, As this is alleged to be a contractual charge, and not a charge for breach of contract, please send me a VAT invoice so I can account for this expense in my annual financial accounting. (You won't get one).

bazster

Dear VCS,

Please confirm that anyone is entitled to park on the approach roads at Liverpool Airport in return for a consideration of £100. Please also advise the payment arrangements for anyone who wishes to do this.

Dear Liverpool Airport

...as above...

Castle

To me "Skippy" from the "Kangaroo court" has got himself confused by referring to PE V Beavis to support a damages claim, and then later on claims it's a contractual charge, which would attract VAT.

esmerobbo

6) Unclear signage.

I am familiar with the placement and content of the signage at LJL. I have also reminded myself by looking again. The terms could not be clearer in my view.

Hmm but how do you read it without stopping?

I would need some convincing that a "Solicitor" wrote that pile!