VCS at EMA -Stopping in a NO STOPPING ZONE

Coupon-mad

SumySani said:

Seems like the IAS Appeal is all online now.
I will submit an appeal today, hope to have the PCN cancelled.

No, don't.  Far too rushed!

Here's VCS v Ian Edward as a PDF:

https://www.dropbox.com/scl/fi/w0k19zxzlpf9eumu68u7b/VCS-v-EDWARDS-Transcript.pdf?rlkey=5t2gilebrjx7g0d6jmy32lou4&dl=0

SumySani

I've just come across this 

Byelaws on roads around airports - The Road Traffic Act 1998 defines a road as any highway or other road to which the public has access; it makes no distinction between private and public ownership. Since the roads are accessible by the public, they would be covered by the Road Traffic Act. The Airports Act 1986 explicitly states that byelaws do not apply on airport roads to which the road traffic enactments apply.

Does this affect my appeal ?

Umkomaas

SumySani said:

I've just come across this 

Byelaws on roads around airports - The Road Traffic Act 1998 defines a road as any highway or other road to which the public has access; it makes no distinction between private and public ownership. Since the roads are accessible by the public, they would be covered by the Road Traffic Act. The Airports Act 1986 explicitly states that byelaws do not apply on airport roads to which the road traffic enactments apply.

Does this affect my appeal ?

Either makes for no keeper liability under the Protection of Freedoms Act 2012 (Schedule 4).  Have a read of it, increase your knowledge of its parameters, link it with VCS v Edward, make your IAS appeal as comprehensive and solid as possible. Give the IAS a very difficult time to find for their paymasters. Get it right, paint them into the corner, then it might be (occasionally happens) they advise the PPC to withdraw their charge. No guarantees, but unless you try, you won't know!

https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

UncleThomasCobley

SumySani said:

Their own picture shows the RK getting into the passenger side , hence cannot be driving. In addition I can provide the flight details that the registered keeper was the person travelling

Please think this through... how would the PPC know that the picture of the person getting into the passenger seat is the RK? Do you honestly believe that they have some magical database with a photo and details of every person in the UK with which to compare, in order to say "oh, hang on... that is the RK in the passenger seat so they cannot be the driver"? There is no forensic assessment of any CCTV pictures so stop imagining that there is.

They don't know who the driver is and cannot hold you, as the RK, liable. That is your argument, although the IAS will ignore that, refuse your appeal because they are intellectually malnourished scammers and you will eventually have to defend this as a county court claim where you will win.

Giant_Hogweed

Not sure if this will be helpful, but I dropped my son off at the same garage a few months ago. The PPC goons were parked up on the garage forecourt. 
I bought £10 worth of petrol then we went into the shop and my lad bought some chewing gum. He then walked to the terminal, never heard a thing.
Maybe thats the way forward at EMA, at least get something for your £6 pick up or drop off fee?

SumySani

Hi All,

I was putting some of the details together to submit to the IAS appeal:  
this is what I have so far

In the appeal it was called out that the driver was not the registered keeper and the Notice is not compliant with the Protection Of Freedoms Act (POFA) 2012 on the Notice issued.

VCS Response :-

“In your appeal it is unclear who the driver was when your vehicle was seen to be stopped on the access road, however we have not cited POFA 2012 nor stated that you are liable for the Charge as the vehicle keeper.”

The response continued with the following details:-

“It is important we highlight that we will continue to pursue this matter on the reasonable assumption that you were the driver of the vehicle on the date in question until information/evidence to the contrary is provided.

A review of our CCTV evidence has confirmed that on the date in question, your vehicle stopped to collect a passenger on the access road where restrictions apply.”

In response to the above I have now provided details showing that the registered keeper had travelled out of the country and the passenger being collected was the registered keeper.  However,

The following points need to be taken into consideration

1)      There is no real evidence that shows that the vehicle was at a complete standstill ( ie stopped). The car was still in motion, as a very low speed, which allowed enough time for the passenger who is the registered keeper to get into the passenger seat.

2)      The time difference between Picture 1 and Picture 3 is 10 secs and both pictures shows that the vehicle is at different locations during that period.

3)      Evidence showing that the registered keeper has travelled outside of the UK. See flight details attached.

4)      The land entered is not relevant land as defined in the Protection of Freedoms Act 2012 (POFA). Paragraph 3 of Schedule 4 of POFA states that land is not ‘relevant’ where byelaws apply to it. In this case, the land in question is covered by East Midlands Airport Byelaws 2001, issued September 2009. As the land is not ‘relevant’ land the Claimant does not have the right to recover any unpaid parking charges from the Keeper of the vehicle.

VSC further responded regarding the bylaws at the airport:

“We note your comment concerning the use of byelaws at the Airport; as already stated the signs at the entrance to the airport clearly identify the roads as private property. Byelaws are not currently in use as the last set of byelaws published relating to the old airport site and are now regarded as obsolete by the Airport Company.”

Airport Company simply cannot arbitrarily decide that the byelaws ‘are now regarded as obsolete’ and if they did then the Operational Documents on the website still refers back to the Airport Byelaws 2001, which were issued September 2009.

The link provided:  Operational documents | East Midlands Airport.

However, if the private road in question around the airport does not fall within the Byelaws, The Road Traffic Act 1998 defines a road as any highway or other road to which the public has access; it makes no distinction between private and public ownership. Since the roads are accessible by the public, they would be covered by the Road Traffic Act. Hence for these roads, only the Police have powers to act on breaches of the Road Traffic Act; not private parking companies, such as VCS.

 Any further details you can provide to add :

I have to submit the appeal in the next day or so.

Thanks 

Coupon-mad

Where's the VCS v Edward case and wording about it, copied from a forum search result?  You were provided with the transcript as the ONLY possible way to paint the IAS assessor into a corner, yet you haven't used it.

SumySani

Sorry - I haven't fully completed the appeal letter , just wanted some input on what I have thus far

Coupon-mad

You have to type it all freehand into the IAS box because it doesn't allow copy & paste.

Keep it short and on point with the words about VCS v Edward and Excel v Smith almost first.  Hit the assessor with two appeal level transcripts (search the forum for the recent wording and the link to the Smith case).

Not much else will work. The rest should be short info to support the case - eg. Flight details and proof to show the keeper wasn't driving.

SumySani

The IAS appeal area is only 1000 words now, reduced from the 2000 from the original enquiry.
I manage to get a hack which lets me paste into their website appeals box.

This is what I submitted:
Dear Sir/Madam,

Appeal to VCS:

VCS Response was based on the reasonable assumption that the registered keeper was the driver until information/evidence to the contrary is provided. A review of our CCTV evidence has confirmed that on the date in question, your vehicle stopped to collect a passenger on the access road where restrictions apply.
Refer to VCS verses Edwards case - Regarding the assumption of the registered keeper being the driver;
"It is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on balance of probability they were driving on this occasion, because one simply cannot tell. For example, there will be companies who are registered keepers of vehicles where many drivers have the use of the vehicle from time to time. There will be individual employers who are the registered keeper but allow a number of people who may drive their vehicle. There may be situations where the husband and wife are each registered keepers of their respective vehicles but for some reason drive the other. There may be situations where husband/wife is the registered keeper of both family cars and the registered keeper regularly drives one car and their spouse regularly drives the other. These are all possibilities which show that it is not appropriate to draw an inference to that, on balance of probability, the registered keeper was driving on any given occasion."

In addition to the above the following points also need to be considered:
1) There is no real evidence that shows that the vehicle was at a complete standstill. The vehicle was still in motion, at a very low speed, which allowed enough time for the registered keeper to get into the passenger seat.
2) The time difference between Pictures is 10 secs and shows that the vehicle is at different locations and hence not stopped.
3) Flight Details attached for RK.
4) The land entered is not relevant land as defined in the POFA 2012. Paragraph 3 of Schedule 4 of POFA states that land is not 'relevant' where byelaws apply to it. In this case, the land in question is covered by EMA Byelaws 2001, issued September 2009. As the land is not 'relevant' land the claimant does not have the right to recover any unpaid charges from the keeper of the vehicle.
5) The KADOE contract specifically states that the data can only be used to enforce the ticket using Schedule 4 of the Protection of Freedoms Act. Hence, if the parking company tries to claim liability against the keeper, with no evidence to suggest they were the driver, then the data would have been misused.
6) In the case where the keeper liability provisions under the Protection of Freedoms Act have not been met, and there is no evidence to suggest the keeper was the driver, then as the keeper I am entitled to object to any further processing of the data and request it to be removed from your systems ( Sect. 10 notice under the Data Protection Act ). If you still continue to process my data, then you will be breaching the Act. Data misuse will be contested in the civil court.

Referring to the Excel verses Lamoureux case:
"The Judge was critical of the claimants (Excel) attempts to hold the keeper liable without being able to rely on POFA. The Judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not)." The further stated: "I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because not seeking to rely on the POFA 2012."

In response to VSC Byelaws comments:
Airport companies simply cannot arbitrarily decide that the Byelaws "are now regarded as obsolete" and if they did then please refer to the Operational Documents on the East midlands Website which are still active.

If the private road in question around the airport does not fall within the Byelaws, the Road Traffic Act 1998 defines a road as any highway or other road to which the public has access; it makes no distinction between private and public ownership. Since the roads are accessible by the public, they would be covered by the Road Traffic Act. Hence for these roads, only the Police have powers to act on breaches of the Road Traffic Act; not private parking companies, such as VCS.

The current contract between DVLA and parking companies, in order to obtain KADOE information from the DVLA should comply to Clause A 6.1. The IPC Code of Practice ( Sixth Edition that was in force at the time of the event) clause 15.1 states that a 'grace' period must be allowed.
Clearly there is no grace period allowed and poor lighting where the vehicle was assumed to have stopped. It was impossible to read the signage which as stated was at the entrance into the airport road, as stopping there, would deem dangerous and would cause obstruction to in-coming traffic. The speed of the vehicle coming into the airport would not allow sufficient time to read the signage as stated. As a result, no contract can be in place by conduct until a reasonable period elapses.

If you persist in processing and/or sharing my data and in the event of VCS filing a court claim, I will file a Part 20 counterclaim for not less than £750. This will be claimed as damages for the distress arising as a result of clear breaches of the DPA 2018 and/or the Protection from the Harassment Act 1997.
I will rely upon the cases of Excel vs Smith and Excel vs Lamoureux and VCS vs Edwards.

I referenced the main point from the VCS V Edwards case: