Airport charge notice help please

Aligoose

Please could someone take a look over my proposed appeal to IAS. I know that a lot of advice is that appealing to IAS is a waste of time but having been encouraged by Coupon Mad's post above I've drafted one to see if this is worth sending.

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Dear Sir/Madam,

Charge Notice [0123456789]: Vehicle Registration [AA11ABC] Site No (…) Date CN Issued (..)


I have previously appealed to VCS and received what I can only describe as a standard proforma rejection letter which contained inaccurate information and which did not refer to the circumstances raised in my initial appeal. I am therefore adhering to their appeals procedure by appealing to the IAS.

I refer to the above Charge Notice issued to me by Vehicle Control Services Ltd (VCS) on 31/01/2017 relating to an event on 09/01/17. I confirm that I was the temporary keeper of the vehicle on the relevant date, the vehicle being a courtesy car on hire from Hyundai. I am therefore its keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (POFA) and I write to formally challenge the validity of this PCN.


You will no doubt be familiar with the strict requirements of Schedule 4 of POFA to be followed in order for a parking operator to be able to invoke keeper liability for a Parking Charge. There are a number of reasons why VCS failed to comply with POFA.
This is a hire vehicle and the position in relation to such vehicles is covered by paragraphs 13 and 14 of Schedule 4 of POFA. The start point is that the Operator (VCS) should seek information from the hire company. Should the hire company wish to avoid liability for the unpaid parking charges they should provide the following:-

(a) A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b) A copy of the hire agreement; and

(c) A copy of a statement of liability signed by the hirer under that hire agreement.


Paragraph 14 goes on to explain the conditions to be met before the creditor, in this case the Operator (VCS), is able to claim unpaid charges from the hirer. The conditions are:-

(a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

(b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and

(c) The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.


I am not in receipt of any of the above required documentation.


As such I am a keeper appellant yet VCS have no POFA 'keeper liability' to rely upon. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced then a parking charge cannot be enforced against a keeper without a valid Notice to Keeper or Notice to Hirer.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4.

The burden of proof rests with the Operator, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. A failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.


I would request that you uphold my appeal against this charge notice, however should you not agree with the representations made I understand that the decision of the IAS is not binding on me.

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Is there anything else that I should include at this stage or keep it simple?Thanks

Coupon-mad

I think I would remove this staff about registered keepers and just make it simpler, and attach as evidence a copy of the NTK (both sides):

As such I am a keeper appellant yet VCS have no POFA 'keeper liability' to rely upon. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced then a parking charge cannot be enforced against a keeper without a valid Notice to Keeper or Notice to Hirer.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4.

The burden of proof rests with the Operator, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. A failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

So I would go straight from:

I am not in receipt of any of the above required documentation.

to

I would request that you uphold my appeal against this charge notice, however should you not agree with the representations made I understand that the decision of the IAS is not binding on me.

I also have a niggle about telling the IAS it was a 'courtesy car' because they might say 'humpphhh, that's not a hire car then'.

I would be more vague, just say as fact you were the hirer of this vehicle (don't even call yourself the 'keeper'), change it all to 'hirer' and that the car is owned by the company VCS initially contacted. If you have a copy of BOTH NTKs (if they issued two, one to the Garage then one to you) attach both sides of both as evidence that you aren't making the ownership up.

Aligoose

Many thanks.

So adapt to this...

I refer to the above Charge Notice issued to me by Vehicle Control Services Ltd (VCS) on 31/01/2017 relating to an event on 09/01/17. I confirm that I was the hirer of the vehicle on the relevant date, the vehicle being a car owned by the company VCS initially contacted (Hyundai). I am therefore its hirer for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (POFA) and I write to formally challenge the validity of this PCN.

I'll also remove the bits that you suggest relating to the registered keeper/driver.

Aligoose

I don't have the NTK issued to Hyundai

Coupon-mad

OK, and yes that is better, pushing the PPC to have to respond to you as hirer and show compliance with the POFA, not leaving the IAS 'person' the excuse of pretending a courtesy car isn't a form of hire.

The IAS will probably still decide that he hasn't seen any evidence who was driving/not driving or some such twaddle.

Aligoose

Great, thank you. I'll get that version submitted and see what response I get.

Coupon-mad

Just don't tick any box to say who the driver was - the IAS does ask.

Aligoose

Thanks, I'd read about watching out for their site auto populating the driver box, sneaky.

Aligoose

I submitted my appeal to the IAS as described above and received this response from the operator (VCS).

The Operator Reported That...

The appellant was the driver.
The appellant was the keeper.
ANPR/CCTV was used.
The Notice to Keeper was sent on 20/01/2017.
A response was recieved from the Notice to Keeper.
The ticket was issued on 20/01/2017.
The charge is based in Contract.

The Operator Made The Following Comments...

1. Humberside Airport and all its approach roads are private land which motorists are allowed to enter provided that they agree to the Terms and Conditions of entry.

2. There are 39 prominent information signs situated at key locations throughout the area which state: “RESTRICTED ZONE”, “No Stopping at Any Time”, “Strictly no stopping on red routes, double yellow lines, roadways or bus stops at any time”, and “£100 Charge If You Stop”. Site photographs supplied, confirm that signs can clearly be observed at the entrance and throughout the site.

3. All signage at the airport uses the nationally recognised Highway Code roundel/symbol for 'NO STOPPING' (Clearway) and it should also be noted that the large entrance signs are 2000mm x 1100mm; to put the size of these signs into perspective, they are larger than a house door.

4. The IPC Code of Practice states that signs in relation to a moving vehicle: “Contain text that is appropriate to the position of the sign and the relative position of the person who it is aimed at. So, if a sign is at an entrance of a site and the vehicle is likely to be moving, it must be sufficiently large to be clear from within the vehicle having regard to the likely speed that the vehicle will be travelling at that point.

5. The CCTV images supplied taken from the recording made at the time, show that the appellant’s vehicle was stopped on a roadway where stopping is prohibited and renders a motorist liable for a charge of £100.00. The position of the appellant’s stationary vehicle is marked on the provided annotated vehicle location and site overhead diagrams supplied. Furthermore, the annotated vehicle location diagram highlights the vehicle’s proximity to the warning signs.

6. Our CCTV footage shows that the appellant’s vehicle was stationary when first observed and remained so for 106 seconds, at which point the footage ends.

7. It must be noted that to reach the point the vehicle stopped, the appellant will have driven past a minimum of 11 signs, including 2 Entrance Signs and at least 9 “Restricted Zone” “No Stopping at any time” “Mobile CCTV” signs. Therefore the driver had sufficient notice to decide whether or not to adhere to stopping restrictions.

8. Please note that we operate to the International Parking Community's (IPC) Accredited Operator Scheme. As members of the IPC, it is necessary for us to evidence to the IPC that we have relevant authority to undertake enforcement activity at the site concerned and that our signs in situ are compliant in setting out the relevant terms and conditions of use. We will only answer pertinent points at this stage.

9. In this case, citing the case of Elliott v Loake 1982, we are relying on the presumption, on the balance of probability, that the appellant, as registered keeper of the vehicle in question, was the driver of the vehicle on the date in question and we support this by the knowledge the appellant has in relation to the circumstances ("events of the day") in relation to this Parking Charge Notice. Furthermore, the appellant does not deny being the driver nor is it stated that they do not know who the driver is.

10. The appellant states that our Notice is not compliant with the Protection of Freedoms Act (PoFA) 2012. However, we have not cited PoFA 2012 nor stated that you are liable for the Charge as the vehicle keeper. We are suggesting you are liable for the Charge on the reasonable assumption that you were the driver of the vehicle on the date in question unless evidence to the contrary is provided.

11. The appellant has raised as an issue that we do not have the required authority to operate on this site. We would refer the Adjudicator to the signs which form the basis of this charge. It will be noted that the charge arises out of a relationship in contract and that we are the principal (not an agent) in the contract. Whilst we maintain that we do in fact have the authority of the landowner to operate upon this site (being the principal in the contract), the existence of this document has no legal bearing on the contract with the motorist. See Vehicle Control Services v HMRC [2013] EWCA Civ 186, para 22 per Lewison LJ. As this is a commercially sensitive document, and is irrelevant to the issues at hand, this is not provided as evidence in this appeal, which may be accessed and circulated by the appellant.

12. In the appellant’s appeal, at no time does the appellant address why the vehicle stopped at a location where stopping was prohibited and they offer no mitigation or reason for that contravention except to say the driver stopped “momentarily”; furthermore as noted the appellant declined to name the driver but they do not deny being the driver nor do they state that they do not know who the driver was.

13. When entering this private it is solely the responsibility of the motorist to familiarise themselves with, and to fully comply with the Terms and Conditions displayed.

14. The appellant stopped on a roadway where stopping is prohibited and was therefore liable for a Charge as per the Terms and Conditions displayed.

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I now have until 16/3/17 to respond.

They have incorrectly stated that the NTK was sent and the ticked issued on 20/01/17 when in fact my NTK is dated 31/01/17- the 20/01/17 may refer to when they sent the NTK to the garage.

Please could anyone advise what my response should be?
Should I repeat about the failure to comply with the requirements about sending the documents to me as hirer or are they saying they are not complying with that because they are assuming that I was the driver?

Any help is much appreciated.

Aligoose

Can VCS rely on 'the PRESUMPTION that the registered keeper was the driver? As per their point number 9 or the ASSUMPTION that I was the driver as per their point number 10?