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  • FIRST POST
    • Danny-S
    • By Danny-S 14th Mar 17, 9:01 AM
    • 15Posts
    • 1Thanks
    Danny-S
    POPLA Response - Indigo Parking (Southern Rail)
    • #1
    • 14th Mar 17, 9:01 AM
    POPLA Response - Indigo Parking (Southern Rail) 14th Mar 17 at 9:01 AM
    Hi,

    I appreciate if anyone can provide some guidance. I received a parking 'fine' from Indigo Parking on behalf of Southern Rail for not being parked in a designated space towards the end of last year. This was during the train strikes on the Southern network, so I had to drive 30 miles to my nearest station that was running any trains. I was not familiar with this station or area, but the car park was full, parked somewhere not blocking any other cars, access etc, paid my 2 days parking and went away on a business trip.

    Upon returning I'd received a ticket that advised I was not 'parked correctly within a marked bay. £60 or £100 fine after.

    I appealed the POPLA with the following text that I built from a few threads on here.:

    PCN #: xxxxxxxxxxxxxxxxxxxxxxx
    POPLA verification code: xxxxxxxxxx

    I write to you as the registered keeper of the vehicle XXXX XXX I wish to appeal the £100 parking charge notice (PCN) issued by Indigo.

    I submit the reasons below to show that I am not liable for the parking charge:
    1. No Keeper Liability (fails PoFa 2012 requirements)
    2. Provision of unredacted landowner contract for Indigo to:
    - manage the car park
    - issue charges
    - take court action in their own name
    3. No proprietary interest in the land
    4. Signage
    5. 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
    6. No Breach of Byelaw

    1. No Keeper Liability
    Indigo’s declared position via their correspondence is based on railway byelaws, which can be found at:
    https://www.gov.uk/government/publications/railway-byelaws

    The Railway Byelaws state, under 14 (4), that: “In England and Wales (i) The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area.” Accordingly, under the Byelaws the owner of a vehicle is liable to pay any outstanding penalty for contravention of the Byelaws.

    From the evidence provided to POPLA by the operator, I believe POPLA will be unable to determine that it has identified the appellant in this case, as the owner of the vehicle. It is a fact that the owner has not been identified. The POFA positively enshrines the right of a keeper not to name the driver nor be 'assumed' to be that individual and nor can it be reasonably assumed in the absence of any evidence, that a keeper or driver is necessarily the owner.

    Therefore, in this case, the operator has not shown that the individual who it is pursuing for the charge is in fact liable:

    - POPLA cannot lawfully 'presume' that a keeper may be held as the owner, and
    - Henry Greenslade has confirmed that POPLA cannot lawfully 'presume' that a keeper may be held as if they 'might' be the driver.
    It is equally true to state that there is also no presumption in law that a driver is necessarily the owner of the car they parked. The operator has not shown that the individual who it is pursuing for the parking charge (me, the driver) is in fact liable for the charge. They cannot switch ambiguously and disingenuously from 'penalty' to 'contractual parking charge' changing the entire previously-argued rationale of the £100, depending on if an appellant has admitted to being the driver.

    As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable.

    2. The provision of an unredacted landowner contract for Indigo to:
    - manage the car park
    - issue charges
    - take court action in their own name
    With no standing or authority to neither pursue charges or form contracts with drivers, Indigo have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare license to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.
    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.

    Railway Land is Not ‘Relevant Land’:-
    Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.

    3. No proprietary interest in the land
    I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Indigo must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has neither automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Indigo to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between Indigo and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Indigo. In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.


    4. Signage
    The signage was not compliant with the BPA Code of Practice and was not seen/ able to be 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.

    In breach of Appendix B (Mandatory Entrance Signs) Indigo have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival. (as per attached photographs)

    The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.
    The BPA Code of Practice states under appendix B, entrance signage:
    “The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

    For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.

    The sign at the entrance to the premises is obscured / rendered illegible by being placed at low height, containing small lettering so as to not be seen when approaching as well as not being readable/legible to a driver moving in a car when entering the premises. Any alleged contract is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign (on the opposite side of the car park) when entering the station platform area, as this is too late.
    There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering the road. The requirement to pay £100 is not clear and prominent as the Supreme Court commented on in Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.

    In particular, 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.

    Further, over and above the BPA CoP requirements, the following section from the byelaws clarifies that only the Magistrates Court can decide if they are satisfied about the adequacy of any sign or notice.

    See below: ‘no person shall be subject to any penalty’ not if Indigo say so and not even if POPLA or any other party says so. POPLA cannot decide liability under byelaws, according to this section (not even if the BPA want POPLA to do so):

    Railway byelaws - 24 Enforcement

    (4) ''Notices
    No person shall be subject to any penalty for breach of any of the Byelaws by disobeying a notice unless it is proved to the satisfaction of the Court before whom the complaint is laid that the notice referred to in the particular Byelaw was displayed.''

    5. 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.

    As persuasive evidence, see the Freedom of Information Request here:

    https://www.whatdotheyknow.com/request/enforcement_of_railway_byelaw_14

    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).

    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 ‘PCN’ 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).


    6. No Breach of Byelaw

    If Indigo attempt to hold me liable under byelaws, then any breach of byelaws 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''.
    Yours Faithfully,


    Indigo have sent a document to POPLA with written permission from Southern to operate here, maps of the car park and photographic evidence of my car and the signage. POPLA have now given be 7 days to respond with anything I want to add.

    Given this is new territory for me, I wanted to know if I should add anything or is the above enough to see this over-turned? Appreciate your help!
    Last edited by Danny-S; 14-03-2017 at 9:26 AM. Reason: removed code tag
Page 1
    • Fruitcake
    • By Fruitcake 14th Mar 17, 9:19 AM
    • 39,737 Posts
    • 79,531 Thanks
    Fruitcake
    • #2
    • 14th Mar 17, 9:19 AM
    • #2
    • 14th Mar 17, 9:19 AM
    I'm finding that very difficult to read because of the format (up-down, left-right scroll bars.)

    I suggest you copy and paste the text into your post instead.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Danny-S
    • By Danny-S 14th Mar 17, 9:26 AM
    • 15 Posts
    • 1 Thanks
    Danny-S
    • #3
    • 14th Mar 17, 9:26 AM
    • #3
    • 14th Mar 17, 9:26 AM
    I'm finding that very difficult to read because of the format (up-down, left-right scroll bars.)

    I suggest you copy and paste the text into your post instead.
    Originally posted by Fruitcake
    I've just removed the tags, thanks for pointing that out
    • pappa golf
    • By pappa golf 14th Mar 17, 9:30 AM
    • 7,170 Posts
    • 7,267 Thanks
    pappa golf
    • #4
    • 14th Mar 17, 9:30 AM
    • #4
    • 14th Mar 17, 9:30 AM
    "Indigo have sent a document to POPLA with written permission from Southern to operate here, "


    correct , southern have asked indigo to look after the car park

    however this does not override the small issue of sending invoices out for parking , when this land actually comes under bylaws
    Have YOU had to walk 500 miles?
    Were you advised to walk 500 more?
    You could be entitled to compensation.
    Call the Pro Claimers NOW.
    • Danny-S
    • By Danny-S 14th Mar 17, 1:00 PM
    • 15 Posts
    • 1 Thanks
    Danny-S
    • #5
    • 14th Mar 17, 1:00 PM
    • #5
    • 14th Mar 17, 1:00 PM
    "Indigo have sent a document to POPLA with written permission from Southern to operate here, "


    correct , southern have asked indigo to look after the car park

    however this does not override the small issue of sending invoices out for parking , when this land actually comes under bylaws
    Originally posted by pappa golf
    Thanks. Should I highlight this in my response or is what was in my original appeal enough?
    • Bradden
    • By Bradden 14th Mar 17, 1:02 PM
    • 173 Posts
    • 104 Thanks
    Bradden
    • #6
    • 14th Mar 17, 1:02 PM
    • #6
    • 14th Mar 17, 1:02 PM
    Have you written to the railway compan? y.. I was charged at Farnborough recently and the decided to drop the case.
    • Fruitcake
    • By Fruitcake 14th Mar 17, 1:06 PM
    • 39,737 Posts
    • 79,531 Thanks
    Fruitcake
    • #7
    • 14th Mar 17, 1:06 PM
    • #7
    • 14th Mar 17, 1:06 PM
    Have you written to the railway compan? y.. I was charged at Farnborough recently and the decided to drop the case.
    Originally posted by Bradden
    Since the railway company can start proceedings for trespass in the magistrate's court, it is possibly not a good idea to alert them, especially as they only have six months before it becomes statute barred.

    It's better to get this quashed at PoPLA and burn off as much of the six months as possible in the process. It's unlikely that the PPC will alert the TOC as they will not get any money at all if that happens.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Coupon-mad
    • By Coupon-mad 15th Mar 17, 1:30 PM
    • 48,239 Posts
    • 61,724 Thanks
    Coupon-mad
    • #8
    • 15th Mar 17, 1:30 PM
    • #8
    • 15th Mar 17, 1:30 PM
    Indigo have sent a document to POPLA with written permission from Southern to operate here, maps of the car park and photographic evidence of my car and the signage. POPLA have now given be 7 days to respond with anything I want to add.
    Well that doesn't help them because railway byelaws can only hold the OWNER liable. They have no evidence of who the owner was and it's not 'relevant land' for keeper liability under the POFA to apply.

    Also go for the usual stuff on other Indigo threads, pointing out that there was no breach of any byelaw and that Indigo have used words like 'penalty' and 'parking enforcement' which suggest a level of statutory authority they do not have, which means this charge was not properly given.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Danny-S
    • By Danny-S 15th Mar 17, 2:09 PM
    • 15 Posts
    • 1 Thanks
    Danny-S
    • #9
    • 15th Mar 17, 2:09 PM
    • #9
    • 15th Mar 17, 2:09 PM
    Well that doesn't help them because railway byelaws can only hold the OWNER liable. They have no evidence of who the owner was and it's not 'relevant land' for keeper liability under the POFA to apply.

    Also go for the usual stuff on other Indigo threads, pointing out that there was no breach of any byelaw and that Indigo have used words like 'penalty' and 'parking enforcement' which suggest a level of statutory authority they do not have, which means this charge was not properly given.
    Originally posted by Coupon-mad
    Thanks. So is that not covered within my original appeal to POPLA, or should I reply back with additional information / re-stating this?
    • Coupon-mad
    • By Coupon-mad 15th Mar 17, 10:38 PM
    • 48,239 Posts
    • 61,724 Thanks
    Coupon-mad
    You need to 'focus their minds' on the winning parts of your appeal and those two are the main ones that win v Indigo. So seize the chance to make it obvious that you win!

    You can't add new evidence or new appeal points not already in your appeal but you can submit comments on their evidence.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

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