Indigo - desperate, so parked in wrong place

Hello again, I’ve compiled the following appeal, which I’d like your comments on please.
The sign is impossible to read as one enters the carpark, it’s the only sign giving parking terms and it cannot be read from any of the spaces when parked. It seems to me that our best defence is to insist that the signage is inadequate and without decent signage a contract between the user and Indigo cannot be formed. Also, byelaw offences have to be decided by a magistrates court, not a private company – the parking company or railway can only allege the breach.
The grass area that we parked on is regularly used, with seeming impunity, by Network Rail for parking their maintenance vehicle. I have photographs of this use and I’ve included these and suggested that a precedent has been set – NW Rail is also the owner/landlord of the site.
The Landlord is Network Rail and London Midland is the Leaseholder, I guess that I refer to Network Rail in section 4.
Should I include the important section saying that I haven’t received a NTK at this stage - Indigo still have until around 13 Sept to issue this?
I’m afraid that I have little knowledge of the law and find myself “shooting in the dark” a bit with this POPLA appeal. I’m very grateful to the efforts put in by others, particularly the appeal by squidster69 and spacesimian2016, which I have blatantly nicked from and, of course, the advice from you all here! Please continue to put up with me and give me the benefit of your comments and guidance re my efforts below, I’m very grateful to you all.

[FONT=&quot]Dear Sirs,[/FONT]
[FONT=&quot]PENALTY/Parking Charge Notice:

[/FONT][FONT=&quot]I am the registered keeper and I wish to appeal a parking charge notice (PCN) from Indigo Parking Solutions at Telford Central Station Car Park. [/FONT][FONT=&quot]I was NOT the driver. [/FONT][FONT=&quot]The charge is levied despite the driver not being identified. A valid and full parking payment was made. This appeal is placed on the following grounds:[/FONT][FONT=&quot]

1. No person or body other than the Courts can impose a penalty for breach of Byelaws 14(1), 14(2) or 14(3) of the Railway Byelaws 2005.
2. No breach of Byelaw
3. Failure to establish owner
4. The location in question is not relevant land
5. No Evidence of Landowner Authority
6. Signage
7. Valid payment was made

1. No person or body other than the Courts can impose a penalty for breach of Byelaws 14(1), 14(2) or 14(3) of the Railway Byelaws 2005.

[/FONT][FONT=&quot]As persuasive evidence, I refer to the Freedom of Information Request F0013227, from R Bostock, dated 10.2.16. which concludes -[/FONT]
“Having carried out a thorough re-examination of our paper and electronic records I can
confirm that the Secretary of State has not confirmed or made any such laws and that no
other person or body other than the Court is able to impose a penalty for breach of the
Byelaws [including Byelaw 14 (1-3)] made under Section 219 of the Transport Act 2000
(as amended) and made operational on 7 July 2005.

Mr Jeaur Rahman, Correspondence Manager, Department for Transport.”
Any definition of “authorised person” (if Indigo argue they are such) is not relevant in this context. There is nothing in the Railway Byelaws 2005 which states that such a person or private firm has any power to impose a ‘penalty’.

Only a Magistrates’ court can, upon laying of the case by the landowner, who are the Train Operating Company (TOC).
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Certainly a private firm cannot dress up a ‘charge’ and call it a ‘penalty’ just because they happen to be agents of a TOC at a Railway car park and they feel that calling their charge a penalty gives them a more imposing and intimidating status than issuing ‘parking charges’.

I put Indigo to strict proof to show the basis of their ‘penalty’ and state the type of court within which they believe they would be able to enforce this ‘PN’ in their name, as required by the BPA CoP. If it is the Magistrates Court I put them to strict proof that they have the power and authority to do this and that they have done so, showing case files, claim numbers, and evidence from the TOC as well as a rebuttal of the publicly-available FOI information, if Indigo submit it is incorrect. Indigo will also have to prove with documentary evidence that the money from these alleged 'penalties' goes to the TOC (as a fine or penalty must) and not to Indigo (as a contractual charge dressed up to impersonate a penalty would).

2. No Breach of Byelaw

The Penalty Notice mentions 'This cark park is regulated by the terms and conditions of parking displayed at the car park in accordance with Rail Byelaw 14' and that I have been penalised for not complying with Breach Code: 3.[/FONT]
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There is no Railway byelaw known as: 'Breach Code 3 - Parked in an unauthorised area’. [/FONT]https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4202/railway-byelaws.pdf
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[FONT=&quot]Photos showing Network Rail vehicle parked on grass verge
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[FONT=&quot]This car park is frequently full, a situation that is not helped by having the upper part of the car park now being used as a storage area for building materials a future pedestrian bridge and the rail users car park also being used by workers from the nearby office areas. Network Rail regularly park the grass border we used because of the shortage of parking space, seemingly with impunity (after all they are the landlords of the site), and [/FONT]I suggest that a precedent has been set here by making sensible use of a space to provide overspill parking, which causes no danger to other car park users, or pedestrians.
In addition, Telford Central Railway Station is located in an isolated area of the town. The only other long stay parking facilities are located at Telford Shopping Centre, this is a good 20 minutes walk away, impossible to walk in time to catch ones train and as pensioners, not something we would feel comfortable doing past midnight, which is when we arrived back in Telford from London.
We had paid our parking fee correctly and if Indigo attempt to hold me liable under byelaws, despite the fact it's not relevant land (no POFA keeper liability possible) then breach of byelaws, too, is denied. Railway Byelaw 14 (3) says specifically:

''No person in charge of any motor vehicle, bicycle or other conveyance shall park it on any part of the railway where charges are made for parking by an Operator or an authorised person without paying the appropriate charge at the appropriate time in accordance with instructions given by an Operator or an authorised person at that place''.
This bylaw is about NOT PAYING (i.e. pay and display). Nothing about parking in the wrong place, having paid and displayed. And it is not disputed that the driver had paid and had no further fee to pay.
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3. Failure to establish owner
Sites designated as Railways by the Secretary of State are subject to statutory control in the form of byelaws. POFA 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050.

My understanding is that the owner of the vehicle is liable for any penalty, if it applies, and the owner has not been identified. As such, I am able to appeal as keeper (going by the POFA 2012 definition) but cannot be held liable under any byelaw because the Train Operator would have recourse only to pursue the owner via the Magistrates Court and that has not occurred. This is a third party agent pursuing the day to day keeper.


4. The location in question is not relevant land (ref POPLA case Steve Macallan 6062356150).

The location in question is not 'relevant land' as defined by the Protection of Freedoms Act 2012, as it is owned by Network Rail and is subject to the Railway Byelaws. The Operator is not the owner of the land in question, and therefore does not provide any consideration which may form a contract with motorists. Any consideration, in the form of a parking space, is provided by the landowner, in this case Network Rail, and any liquidated damages for breach of contract would be owed to the landowner, not to the Operator. The Operator has provided no details showing their authority to exercise parking controls on railway land, nor provided contact details at Network Rail, to whom I can direct a complaint.

The British Parking Association’s (BPA) Code of Practice (CoP) states in section 7.1 “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.”

The Operator has not provided an unredacted copy of such authorization. In the event that proof of such authorization can be provided I challenge its validity should the date of commencement, termination date and validity of the signatories’ identity of the contract be unclear. The Operator has failed to comply with any such authorization by breaching BPA code of practice as identified under item’s 2, 5, 6 and 7. Furthermore the operator has omitted clear information about the process for complaints including a geographical address of the landowner.

5. No Evidence of Landowner Authority
Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. I do not believe that Indigo has landowner authority and, as such; the operator has not met the requirements of this section of the BPA Code of Practice.

Section 7.1 states “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

Section 7.3 states “The written authorisation must also set out:

a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d. who has the responsibility for putting up and maintaining signs

e. the definition of the services provided by each party to the agreement

Indigo are required to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. Any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority.

As Indigo do not have proprietary interest in the land, I demand that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract. I do not believe they have such authority.

Indigo has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

As a third party payment system is operational at this location, any landowner contract and supplementary site specific user manual, must also provide evidence that this company has a contract with the landowner permitting the following:
a) payments by this system
b) Indigo have a contractual agreement with the pay by phone company granting this consent for use at this location.
c) No DPA rights have been contravened as a consequence of using such a system
d) Full planning consent is in force for the signage at the location.

6. Signage[/FONT]
The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

http://imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the sign poorly placed, single sign, is on the wrong side of the car park entrance road and after the car park has been entered. It is unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.



Photo showing sign location


It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, this sign does not clearly mention the parking charge which is hidden in small print. Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.[FONT=&quot]

The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between Indigo and the driver. There was no offer, consideration or acceptance flowing between this Operator and the driver which could have created any contract for the driver to pay this extortionate sum over and above the correct tariff already paid.

Indigo state that the terms and conditions of parking are clearly stated, but the single small sign, located near to the entrance to the car park, is not easy to see being on the “wrong” side of the road and it is impossible to read any of the terms and conditions whilst driving into the car park. [/FONT]
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[FONT=&quot]Photo showing close-up of sign with terms
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[FONT=&quot]The size, positioning, size of font and colours used make it impossible to read without stopping and getting out of the car. Even then, the sign is not easily accessible. The car park is busy and having to dodge exiting cars to actually read the sign breaches the BPA code of practice.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about Indigo’s terms and conditions' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

To be clear, there is nothing to communicate full contractual terms & conditions.

I would also like to formally request to see all evidence presented by Indigo regarding this appeal and the opportunity to refute any evidence submitted by Indigo regarding this appeal.

To quote Henry Greenslade; a highly respected, longstanding lead adjudicator of parking ticket appeals across the board (Council statutory tribunals as well as private parking issues via POPLA), with a reputation for fairness and high integrity.

From the Final Report:

''At POPLA, Assessors consider the evidence produced by each party, all of which evidence the other party has the opportunity to see and comment upon.''

and from page 15 of the POPLA Annual Report 2015:

“…it is certainly a basic principle of a fair appeals service that each party is given the opportunity to see the other party’s case and to comment upon it. This is the position at POPLA. Appellants should obviously receive the operator’s evidence in its entirety.''

7. Valid payment was made[/FONT]
[FONT=&quot]As the keeper of the vehicle, I refute any argument by Indigo that payment was not made, received or validated. [/FONT]

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That completes my case for appeal. I request that my appeal is upheld.

Yours faithfully,[/FONT]

Thanks very much Coupon-mad, Sussex is a bit far from Telford, but I owe you and all of the other contributors, a pint :beer:

I do know her and she has been quite helpful in the past. I'll get in contact and report back.