Vcs - pcn

Shell2015

Redx wrote: »

have a look at this winner too

use what you like from it

Thank you Redx that has some really good points we had not considered, also looks like it will be interesting to see if a similar appeal will be upheld.

Ralph-y

and if you do not mind then please fill out the government consultation survey here

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/418725/Parking_Discussion_Paper_FINAL.pdf

Ralph:cool:

Shell2015

Ralph-y wrote: »

and if you do not mind then please fill out the government consultation survey here

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/418725/Parking_Discussion_Paper_FINAL.pdf

Ralph:cool:

Hi Ralph, trust me that is on the agenda for this weekend!

Shell2015

Many thanks to everyone for their advice and support, below is the appeal draft to the IAS, I would appreciate any comments for improvement or bits that may need removing. Obviously we have attempted to make sure there is no suggestion of the driver.


A special thanks to Coupon Mad, Spex86 and bodmass a good chunk of this came from their appeals, I hope they do not mind me using some of the points. Without the support of the people on here this appeal simply would not be possible.


The entire section on the Equalities Act we wrote from scratch so I expect that to be where the issues are.


Dear IAS assessor

By entering into this appeal I am not inferring in any way that I will be bound by its verdict and if the IAS fail to find in my favour I reserve the right to reject their verdict.
I'm appealing as the registered keeper of the vehicle, against the private parking charge issued by Vehicle Control Services Ltd (VCS) on the following grounds:

1. Breaches of Independent Parking Committee Code of Practice (IPC CoP)
There are no suitable entrance signs at the site which comply with schedule 1 of the IPC CoP. The only sign which appears near the entrance is the same as the other signage on the site (see entrance image 1 and 2). This sign is too high and on the wrong side of the road to be suitably visible and readable to motorists who enter the site. Moreover the signs containing the claimed terms and conditions across the site are all considerably over 6 feet (see entrance image 2 and height image 1 for examples -the person in the images stand at a height of 5 feet 10 inches), the IPC CoP clearly states “it is suggested that no part of the sign which contains relevant text should be over 6’, or under 12”, from ground level.”

Further the operator has failed to comply with Schedule 1 which clearly states, “Changes in Operator’s Terms and Conditions; Where there is any change in the terms and conditions that materially affect the motorist then you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply. The signage should be in addition to the signage ordinarily required.”

In this case no additional signage was put in place when the operator changed its implied terms and conditions. Moreover it appears they specifically began to charge disabled users for parking on the site without giving suitable notice or warning. This not only breaches the IPC CoP but also breaches the Equalities Act (EA 2010) as no reasonable adjustment was made to inform disabled users of this change. As a result both the operator and the landowner are now severely liable for breach of the EA 2010.

The IPC CoP also states the following in Part B 9.1 “Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes. It is suggested that a grace period of one month is appropriate and that during this period you should identify vehicles that would have incurred charges under the new system where they wouldn’t have previously and inform the driver by notice affixed to the vehicle that in future they will incur a charge. Vehicles that return having previously had notice of these charges can then be ticketed in the normal way at your discretion. More guidance on signage is found in Schedule 1.”

While Part B 9.1 above may only be a suggestion by the IPC it proves that the operator acted in a predatory and misleading manner towards disabled users by ignoring all of the IPC’s advice and regulations. Firstly by not warning of this change by use of additional signage, which is a specific requirement of the IPC CoP, not a ‘suggestion’. And secondly by not making a reasonable adjustment to issue warning notices to vehicles which would be subject to a penalty under the new terms. Acting in this way places the operator in breach IPC CoP, Part B“14. Predatory Tactics, 14.1 You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system as defined in schedule 2 to the Code.”

The operator is also in breach of the IPC CoP in a number of other instances, which will be discussed further in the points below.

2. Breach of Equalities Act 2010
The EA 2010 Section 20 para 3 states “The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

In this case the change in terms and conditions specifically affected disabled users and imposed liability upon them. Without additional signage warning of such a change to the terms and conditions it is reasonable for existing users regardless of disability to assume there had been no change in terms. For a disabled person and their carer this applies even more so, as a disabled person is likely to struggle getting in and out of a vehicle, meaning the attention of both parties is focused elsewhere.

In this instance disabled users were put at a serious disadvantage as they and their drivers were not made aware of the change in terms and conditions, which specifically targeted them. The operator and in turn landowner did not act reasonably to avoid the disadvantage, the operator did not make any attempt to warn disabled users of this change by following the IPC CoP, which states they must put in place additional signage to advise of the changes. Nor does it appear any attempt was made to place warning notices on vehicles in disabled bays at the site. This also means that the operator made no attempt to mitigate their losses which is something they must do under English law.

Further as the only apparent change to the terms and conditions was to begin charging disabled users, the operator clearly acted in a predatory and misleading manner towards them. This shows the operator had intent to specifically target disabled users and issue vehicles they travelled in with penalty charges for breach of contract.

If the IAS does not allow this appeal then they will be seen to be endorsing the operator’s breach of the EA 2010. Indeed the IAS would be encouraging the operator to actively mislead and act in a predatory manner towards disabled people. This action will be reported to the DVLA, the local Member of Parliament and the Communities Secretary.

3. Inadequate and Insufficient Signage - no contract formed.
I firmly reject that any contract was ever entered into by the driver and certainly not by myself the registered keeper. Firstly as discussed in appeal point 1 above, the signage on entry to the land is improper and insufficient. As such, the requirements for forming a contract such as a meeting of minds, consideration, acceptance, and certainty of terms were not satisfied. Even if there was a contract, which is denied, then it is unfair under the Unfair Terms in Consumer Contracts Regulations (UTCCRs1999).

As discussed in point 1 above the IPC CoP states specifically under Schedule 1 that “The sign must be readable from far enough away so that drivers can read all of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead”. The sign in place to the right of the road (see entrance images 1 and 2) does not fulfil the role of an entrance sign as per the IPC CoP, in terms of its content, presentation and location.

Moreover no ‘period-of parking’ has been stated on the Notice to Keeper (NtK) (see evidence 1 ) or in subsequent correspondence with the operator (evidence 2 and 3), as a result there is no suggestion the vehicle was parked outside of a ‘Grace Period’ as per the IPC CoP Section 17.1.

Further the operator is attempting to say the charge is a contractually agreed sum which it is not. In order for there to be a contract there must be an offer, acceptance and an exchange of ‘consideration’ between the parties (i.e. each party must receive something of value from the other). If only one party receives the ‘consideration’ there can be no contract. So it can’t be a contractually agreed fee, in the situation where what you are being asked to pay for is something that is NOT allowed because, it fails to establish the essential requirements of a contract, as there is no exchange of consideration when you are being asked to pay but get nothing in return.

Because permission to park cannot be granted when parking isn't allowed the parking charge cannot be a contractual price. Instead, the charge is still a sum sought as damages, and therefore must be shown to be a genuine pre estimate of the loss which may be caused by the parking breach.
Indeed the operator has breached the new Consumer Contracts Directive from the EU, specifically the information requirements in the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013:

They failed to serve by 'durable medium' in advance, the geographical address and phone number of their client, since VCS is acting as an agent of the principle, the landowner of the car park.

Also they failed to ensure that the contract was 'expressly agreed' which is a requirement of the regulations - agreement can no longer be assumed or implied. It is trite law that a contract read (or in this case, not read) merely from signage leads only to 'implied consent': 'a manifestation of consent to something through conduct, including inaction or silence' or ' Consent that is inferred from signs, actions, or facts, or by inaction or silence.'

In this instance it is clear that express consent (as required by this law) was never given to enter into contract. And further clearly express consent (as required by this law) was never given to be subject to additional unsolicited charges which is what this PCN quite clearly amounts to.

So it fails the test of 'express agreement' in advance of a consumer contract, which is now demanded by the EU Directive and current Consumer Regulations i.e. 'Express consent is clearly and unmistakably stated, rather than implied.'

It is the will of Parliament, following the recent EU Directives on Consumer Contracts, that UK consumer contracts are now unified in terms of what is required by way of information before the contract is concluded. Also contracts must be 'expressly agreed' so a contract based merely on implied consent from a sign, fails the new statutory regulations:

These Regulations apply to all UK consumer contracts from June 2014, unless they are within the exempt list (which a parking contract is not).
The information to be given to consumers is provided in Schedule 2 (On-Premises) and Schedule 2 (off premises and distance contracts) of the Regulations.''

Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited charge not expressly agreed at all, so this is a breach of the Regulations).

Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NtK is an unsolicited invoice).
Another breach by VCS

Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract
No payments were expressly agreed in any way.

Information breaches of these Regulations:

This Operator has failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract
''13.—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and
(b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be
provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect off paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.''

Everything that is required by this statute has been omitted, including no information given about the right to withdraw in the case of a distance contract (because this is certainly not one that can be agreed face to face). There is no exemption from this even for distance contracts with limited space or time. Even if this is not considered to be a 'distance contract' the Regulations set out that all Consumer Contracts (except 'exempt' ones which parking contracts are not) require certain information including the geographical address and phone number of the principal, for complaints, where a trader is an agent.

This statutory information was missing and it was not served in a durable medium beforehand, nor was any term 'expressly agreed' so the contract breaches the above statutory regulations.

Regards 13. (1)VCS have failed to provide ‘the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used,’ The only sign around the entrance contains too much information and it positioning in an unsuitable way to be read from a moving vehicle. Furthermore the so called ‘repeater’ signs are infrequent and not suitably visible form every location in the car park. Therefore this is a clear breach of the regulations regarding distance contracts.

The linked Regulations show that a failure to provide the statutory information and to obtain express agreement, now renders any UK consumer contract unrecoverable.

4. The charge is a penalty for breach of contract and not a Genuine pre-estimate of loss (GPEOL).
If a contract was formed in this instance, which is again firmly denied then GPEOL must apply in this instance. In this instance GPEOL applies, as per signage at the site the operator is claiming for a breach of the implied terms and conditions.

There is sufficient evidence to show that the actual costs to the operator VCS are £15 significantly less than the £100 they are attempting to claim. The GPEOL of VCS which is a wholly owned subsidiary of Excel was provided on numerous occasions to the Parking On Private Land Appeals (POPLA) service while VCS remained a member of the British Parking Association (BPA). Evidence of the operators GEPOL is available at the following link: hxxp://www.parking-prankster.com/excel-parking.html

As such the amount of £100 does not represent a genuine pre-estimate of loss, nor is it a core price term nor does it reflect any material damage to the landowner or the operator. The fact that the charge is non-itemised and given as a round figure to the maximum amount allowed (Also with the minimum amount discount offered for payment with 14 days.) under the IPC CoP (Schedule 5) means that this charge can only be interpreted as quite literally no-more than a disguised penalty. Which has been issued in the form of a misleading un-solicited invoice with the aim of maximising revenue for the operator.

If the charge is an attempt at gaining compensation for a loss to the businesses then it is not commercially justified and has no basis in law to be claimed. Moreover as no ‘period of parking’ is shown on the NtK, the claimed ‘contravention’ could have lasted seconds (such as during the ‘Grace Period’ mentioned in point 3).

Further it has since come to my attention upon visiting the site, after receiving the NtK, the first 30 minutes of parking are free, as a result there is no evidence that the vehicle was parked outside of the free period. Therefore the operator and landowner have suffered no loss.

Regarding penalty charges, under UK consumer law, a penalty clause is specifically banned as an ‘unfair term’ in the Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs 2008). Contract terms between a company and consumer are also subject to the UTCCRs 1999. This is especially the case when the consumer is one step removed as the registered keeper and has not had an opportunity to individually negotiate the terms in advance.

Further The Office of Fair Trading (Oft) in their Unfair contract terms guidance 5.1 states:
“It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”

Moreover the OfT note that a contract term is “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”. In this case the charge is being imposed for a breach of contract so the preceding statement applies.

The UTCCRs 1999 state:
''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.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''
The signs on the site (see sign image 1) clearly state that the charges apply ‘if you breach the terms and conditions’. The NtK clearly states that the charge was issued ‘for breaching the car park terms and conditions’ again proving this to be a breach of contract situation.

Under the above regulations the charge is unfair, the amount claimed is excessive and is being enforced as a penalty. I wish 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. Note: the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting an IAS defence. Also losses must not include normal overheads costs incurred by the operator in the running the business or the manning of the site premises.

Shell2015

Further to the above point, this is not a contractual fee/tariff arrangement which would offer/allow any parking at a price. A driver cannot contract to be allowed to do something which is in fact disallowed by signs; one cannot contract to fail to fulfil an obligation. Such a clause would be a disguised penalty as a deterrent for breach by any driver who fails to fulfil the obligation to display a ticket. Since this is not a matter of consideration, the PCN must represent a genuine pre-estimate of loss. In this case, having visited the site since receiving the NtK in January 2015 the charges are up to a maximum of £3 for ‘all day parking’ with the first 30 minutes free and several pricing stages between. So a sum of £100 is clearly unreasonable, extravagant and wholly unrelated to the tariff which has not even been defined as a starting point.

It is established law that a provision which constitutes a penalty is unenforceable. The conventional approach to determining whether a provision is a penalty has been to distinguish between a liquidated damages clause, which is enforceable if it is a genuine pre-estimate of loss, and a penalty, which is not (Dunlop Pneumatic Tyre Co v New Garage and Motor Co (1915)). In the case of Dunlop there is a statement by Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

At the Court of Appeal in Murray v Leisureplay plc (2005) a broad approach was applied, asking whether the predominant function of a clause was compensatory (enforceable as long as the sum is not extravagant or oppressive when compared to the loss) or to deter a party from breach (unenforceable penalty).

In the case of Sheriff Enforcer Ltd., their intentions are clear from the word 'penalty' that they are aiming to deter. The evidence I have shown and attached to this appeal proves that in this instance, this charge was devised with the clear intention to be a deterrent and as such it constitutes an unenforceable penalty clause.

If this Operator cites 'ParkingEye v Beavis' stating that their charges are 'commercially justified' then this is fully rebutted. ParkingEye v Beavis was only a County Court small claim decision where the learned Judge was careful to include caveats which distinguish the case. In Court, the Judge said he expected the decision to be referred to the Court of Appeal. The case has now been heard at the Court of Appeal and we await judgement.

Thus at this current time there is no ‘precedent’ to support a penalty being enforced as a deterrent against a consumer. Regardless in the Beavis case the claimants were the principal, whereas in this situation the operator VCS are acting with negative responsibility, presumably on behalf of the landowner (if they can evidence they have that authority, see appeal point 7).

Furthermore VCS have already previously lost appeals on this point in both court ‘VCS v Rachael Finn’ and via appeals services ‘VCS v Bycroft’ & ‘VCS v Oughton’. As with this case VCS failed to provide a genuine pre-estimate of loss. Therefore on this point alone there can be no justification for rejection of this appeal.

5. Failure to comply with the Protection of Freedoms Act (POFA 2012) Schedule 4 – there can be no keeper liability.
(see evidence 1 for a copy of the NtK)

Under Schedule 4 of the POFA 2012 the operator must fulfil a number of mandatory conditions for keeper liability to apply:
“Right to claim unpaid parking charges from keeper of vehicle...
4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met; and
6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—
(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in
accordance with paragraph 8.''

The requirements of Schedule 4 are prescriptive and this NtK fails to meet the 'second condition' for keeper liability.

Firstly, the NtK does not warn the keeper, at any point, that the operator may pursue them under POFA 2012. Though the NTK heading is “NOTICE TO KEEPER/DRIVER” again at no point does it warn or inform the Keeper of any potential liability under POFA 2012.
Thus the NtK omits the mandatory wording set out in 8(2)(f);
“The notice must -
...warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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;”

Secondly, the NtK fails to inform the keeper of the ‘period of parking’ which must be specified as time period. Under POFA 2012 paragraph 8(2)(a) “The notice must.... (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”. Moreover the IPC CoP also states in Part C, 3(h)”Specify the period of parking and the time of the issue of the Notice to Driver.” The specific use of the word ‘and’ shows that two distinct times must be shown. As per POFA 2012 Schedule 4 the ‘period of parking’ is a time that must be recorded and shown on a Notice to Driver (NtD) and a NtK. This must be a period of time spanning several minutes and it is not enough for an operator to use generic wording to the effect that this is just the “period that immediately precedes the contravention.” The IPC CoP requires an Operator to observe a parked vehicle, allowing a suitable grace period for a newly-arrived driver to read a sign and to obtain a pay and display ticket. I have seen no evidence that the person ticketing that day waited even 5 seconds before issuing a NtD. Since it is a pay and display car park, there must be a suitable grace period for drivers to read the signs, find the machine, queue, pay their fee and then return to the car to display the P&D ticket on the dashboard.

A 'specified period of parking' is a timed period which will always differ from the 'time of issue' in view of the time taken to input, print and then finally serve a NtD. It cannot be assumed that any unsaid 'period of parking' was compliant with the observation and grace period requirements of the IPC CoP and so I contend the generic wording on the NtK is unfair and unclear. The IPC requirement to record both timings would prevent the possibility of taking an immediate photo and issuing a NtD within the site grace period, for instance, whilst the driver was merely reading the signs and then obtaining the P&D ticket from a machine.

In my case where it is alleged the driver 'parked without displaying a valid ticket / permit' the 'period of parking' is an imperative piece of specific information for a registered keeper who may never have even been in that car park, let alone in the car that day. This is not just about interpreting the IPC CoP, however, it is about statutory wording on a legal document. If Schedule 4 did not require a 'period of parking' to be stated as a specific time, then it would merely have words to the effect that: 'a Notice must state that the period of parking is the time which immediately preceded the NTD'. Clearly this is not the case - the wording of the Schedule has been drafted to require a 'period of parking' to be specified. Indeed this is made completely clear in 7(2)(c) with the phrase 'the specified period of parking'. Where the Schedule says “The notice must'' then the text which follows is prescriptive and mandatory and is not open to interpretation nor any assumption of a parking period. Compliance with this section of the Schedule is, in my view, not met by a generic catch-all sentence to avoid specifying a time period on every separate NtD and NtK.

Additionally, the NtK does not stipulate the time and date when the original Notice to Driver was given. This is a stipulation under the PoFA 2012, paragraph 8 (2) (c) where it states that the notice “states that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7 (2)(b)(c)(f)”. To clarify, paragraph 7 (2)(f) states that the notice must “specify the time when the notice is given and the date”. Whilst the NtK does state the date and time of what they describe as the “unauthorised parking event”, at no point is there any indication of the time and date the Notice to Driver was given, which could even have been 24 hours later, for example, if a car remained there for a long period. Again, this point also fails to meet standards as set by the IPC CoP, specifically Part C, 3.1(h) where it states that the NtK must “Specify the period of parking and the time and issue of the Notice to Driver”. Again, this is not just about interpreting the IPC CoP, however, it is about statutory wording on a document. Where the Schedule says “The notice must'' then the text which follows is prescriptive and mandatory and is not open to interpretation nor any assumption of a time and date when the original NtD was given.

Further, the NtK does not specify the amount of the parking fee/tariff which this Operator alleges remains unpaid, i.e. any tariff due prior to the issuing of a NtD on the day. This is a requirement of the NtD which must also be repeated in the NtK. To clarify, paragraph 7 (2)(c) states that the notice must -
''inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is—
(i)specified in the notice; and
(ii)no later than the time specified under paragraph (f)*'' {*(f) = the time when the notice is given}

The above words prove that more than one time is required to be shown in a NtK. But in addition, the keeper must be informed of the specified sum that related to the specified parking period (i.e. the applicable tariff, not just the £100 'parking charge' which in fact can only arise straight after the issue of a Notice). The 'unpaid parking charges' in the Schedule are stated as those which remained unpaid on or before ('no later than') the time when the NtD was given so this is not the £100 which happens also to be described as a 'parking charge'. There is no ambiguity because the Schedule defines the time applicable - the parking charge that remains unpaid is the 'sum in the nature of a fee or tariff' which arose during the 'specified period of parking' and not following the issue of a NtD.

At no point have I been informed that the P&D fee has not been paid in full (or perhaps not paid at all). So I have no idea whether the driver is alleged to have owed 1p or £5 (or nothing at all) prior to the NtD. Nor do I know what the tariff nor parking period was - so even if I visited the car park now, I would not have the information to be able to work out the parking charge possibly 'due'.

If it was the case that payment was made in full and it is merely a matter of not displaying a ticket, then the Schedule still requires the NtD and NtK to inform me how much of the specified tariff for the specified parking period remains unpaid. So, in that event the NtK would still have to include words to inform me that 'the total amount of the unpaid parking charges relating to the parking period of (specified period of time), as at (a specified time not later than the time of issue of the NtD) is £0'. Then the Operator would need to explain that the alleged contravention was 'failure to display' (rather than a failure to pay) and set out how a PCN of £100 has arisen (either as consideration or, as in this case, compensation, liquidated damages arising from a breach).

6. This point applies if the operator is claiming that POFA 2012 does not apply.
It should also be noted that the operator makes the claim that they are “pursuing the costs of the PCN on the reasonable assumption” that the registered keeper was also the driver. There will be no admission as to who was driving and no assumption can be drawn as such, therefore VCS must withdraw their action against the registered keeper. There is no legal basis to pursue the keeper on the pure assumption alone that they were the driver. As such further contact with the registered keeper will be considered harassment.


7. No Evidence that this Operator has standing or authority to pursue parking charges.
The Operator has provided no evidence of any form of contract with the landowner of the site. Moreover even if such a contract did they are acting under a bare licence as a site contractor on behalf of the landowner and they have negative responsibility. Vehicle Control Services Ltd are not the landowner nor do they have any title or assigned interest in this land. I see no evidence that they have a right in their own name, to offer parking spaces or form contracts with drivers. Even if there was an unpaid tariff (which is denied) I contend that fee income (or loss of same) is solely a matter for the landowner.


In Summary:
I believe I have proved beyond any doubt that the action which VCS has brought against me is without foundation. Moreover as discussed above a significant number of their actions contravene existing law, including but not limited to breach of the the EA 2010 and the IPC CoP.

This appeal shall also form the basis for a formal complaint against VCS for breach of the IPC CoP. Further where the law has been breached and my rights denied under EA 2010, it will be used to take further action should I deem it necessary. However if VCS agree to drop their action against me at this point then I shall agree not to raise a complaint or pursue court action against them for the illegal nature of their business. Though should they fail to unequivocally drop their action against me then I will proceed with action against them.

Further I shall defend any court action by VCS vigorously including full use of any court appeal system if such action becomes required. I will also counter charge VCS for harassment, damages and costs brought about by them. Any harassment by ‘debt recovery agencies’ who attempt to extort money from me on behalf of VCS without a County Court Judgement will be rejected.

If the IAS fails to find in favour of my appeal, then I require a detailed point by point breakdown and explanation as to why each point was rejected. Failure to do so will be taken that the rejection of the appeal was of an arbitrary nature and will be used in any further defence required. Of the above points I wish to especially know the justification for rejection of points which have been previously upheld in appeals (such as points 4 and 6).

Further if my appeal is rejected, I demand a full breakdown of the number of cases which the IAS has reviewed along with detailed breakdown of how many appeals have been upheld and how many have been rejected. This will help to establish the true ‘independence’ of the IAS should I wish to take matters further. A failure to supply this information in full will be seen as admission that the number of rejections reflect unfavourably on the IAS. Moreover I will require the name and details of the assessor to verify they are an independent solicitor. Failure to supply these details will be seen as admission that the IAS are not running an ‘independent’ service and thus result in a complaint to the DVLA and Solicitors Regulation Authority.


Yours Sincerely,

---

Regarding evidence to include do we need to include transcripts of all the court cases mentioned? And copies of any legislation?
And would that be a link to a website or do we have to include PDF copies?

Evidence images
Entrance Image 1
hxxp://i.imgur.com/iwduZuu.jpg
Entrance Image 2
hxxp://i.imgur.com/q2Yg9nO.jpg
Height Image 1
hxxp://i.imgur.com/3Dr3IOT.jpg

Interestingly they have actually changed the wording of the signs on the site again as was noticed by our relative when they went to take the pictures for us. I am not sure a change to the wording aids our appeal at all though, unless someone can advise otherwise?

Previous signage around the time of the aledged incident:
hxxp://i.imgur.com/sq1714X.jpg
New Signage:
hxxp://i.imgur.com/IKfBDGr.jpg

Guys_Dad

This is so long, with some clearly non-professional remarks and demands that your best chance is for the IAS assessor to die of boredom and you get a win by default ! :rotfl::rotfl:

Honestly, accepting that the IAS is a kangaroo court and no matter what you wrote is likely to be rejected, if you have any genuine potential winning points in there, then bring them out without the pseudo-legalistic chaff that obscures them.

Otherwise, hope for the die of boredom outcome.

Shell2015

Yes thats the only problem I suppose, i'm not a solicitor :P. So when it comes to this professional language goes out the window to some extent, and well picking up a solicitor at this stage would be silly as you say its a kangaroo court.

I think perhaps part of me was hoping we win because they get bored

Thank you for taking the time to have a look though Guys Dad its appreciated.

Shell2015

Edit: Scratch the below, looks like they mixed up their numbers.


Not sure if anyone can advise, we attempted to submit the appeal on theias.org/appeal however we are getting an error:

Your PCN or Registration Number has not been recognised. Please try again.

Please Note: If you have had your appeal rejected and you have been told to enter your appeal on this site but keep receiving this message; please contact the operator that issued the charge for assistance.

The IAS will not have the information to assist you at this stage.

Operator Contact Details can be found at http://www.theipc.info/#!aos-members/cv75.

I will email VCS to advise them of the issue, though I don't expect a response before the 21 days appeal period is up.

Could this be a genuine mistake or are VCS/Excel known to play games like this?

arthurx1234

Shell2015 --I agree with you about section 9.1 and the grace period but below is what i got as an excuse from IAS
"[FONT=&quot]The first breach concerns the lack of grace period for enforcement of new terms and conditions. The Appellant is correct that the code suggests a grace period of one month before enforcement action is taken, but the fact the Operator has chosen to enforce prior to the recommended date does not mean the parking charge is no longer enforceable as the code of practice does not bind the Operator. The fact that the Operator is enforcing earlier than recommended is not a predatory tactic."

The above totally contradicts the code of practice but the species of animal you are dealing with is from a very small gene pool.

But beware they are also monitoring this forum

I am just not going to pay -- will be invoicing them for every reply i send to their debt collectors.

good luck

Arthur

[/FONT]

Shell2015

Hi Arthur,

Thanks for the response, much like everyone else we don't expect to win at the kangaroo court, but best to have done it if it ever goes to court.

Appeal submitted so fingers crossed. HA.

Shell