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  • FIRST POST
    • dirtdog
    • By dirtdog 10th Apr 17, 5:11 PM
    • 31Posts
    • 18Thanks
    dirtdog
    Indigo PN St. Albans Station
    • #1
    • 10th Apr 17, 5:11 PM
    Indigo PN St. Albans Station 10th Apr 17 at 5:11 PM
    Hello

    Today the driver of my car received a PN from Indigo at St. Albans station for "01 - Parked without displaying valid payment".

    The driver did indeed pay for their parking at the meter and entered the licence plate into the machine, however the driver wasn't aware he had to display the ticket in the vehicle.

    The PN is citing Rail Byelaw 14 and is 100 pounds if paid after two weeks, and 60 pounds if paid earlier.

    Do I have have a case for fighting this PN?

    Reading the sticky here it seems that I should wait 26 days and then send a BPA appeal and then appeal to POPLA. This this correct and still up to date?

    Many thanks
    Last edited by dirtdog; 29-04-2017 at 7:30 AM. Reason: Added more information
Page 2
    • Handbags-at-dawn
    • By Handbags-at-dawn 29th Apr 17, 2:48 PM
    • 45 Posts
    • 83 Thanks
    Handbags-at-dawn
    Trespass is a civil wrong - a tort. It's not a criminal offence per se.

    You can't be prosecuted in the Magistrates' Court for trespass unless some statute makes a particular form of trespass an offence. Eg. Part V Criminal Justice and Public Order Act 1994 created offences in connection with various forms of trespass, such as squatting (s 73).

    The charge could only be for breach of a Railway Byelaw. (It's arguable that failing to display isn't contrary to B14 (1-3), but that is the only thing the charge could be for.)
    • Coupon-mad
    • By Coupon-mad 29th Apr 17, 2:49 PM
    • 51,855 Posts
    • 65,491 Thanks
    Coupon-mad
    I went to https :// admin.parkindigo.co.uk/indigo/pcn.aspx (spaces addded to address as I cannot post URLs yet) to file the appeal online, but interestingly I do not have the information to file the appeal online it seems (even though my PN states that I can).

    The website asks for a VRM and a reference as they are printed on the notice.

    I cannot find that information on my notice.

    I will post the appeal instead.
    Originally posted by dirtdog
    Your car reg and the PCN number, is all you need I think. And avoid the quesion about who was driving.

    If you HAVE to post (not recommended), get a free certificate of posting from the PO counter.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • dirtdog
    • By dirtdog 29th Apr 17, 3:01 PM
    • 31 Posts
    • 18 Thanks
    dirtdog
    Your car reg and the PCN number, is all you need I think. And avoid the quesion about who was driving.

    If you HAVE to post (not recommended), get a free certificate of posting from the PO counter.
    Originally posted by Coupon-mad
    Thank you - that worked. I will post the appeal online (taking screenshots).
    • dirtdog
    • By dirtdog 29th Apr 17, 3:05 PM
    • 31 Posts
    • 18 Thanks
    dirtdog
    Quick question:

    The website requests a reason for the appeal and I can chose from:
    -----------------------
    A pay and display/POF ticket machine was faulty
    A valid authorisation to park the vehicle had been issued †
    A valid pay and display ticket was purchased and displayed †
    A valid payment was made †
    I have a valid permit †
    I was displaying a valid blue badge †
    I was loading/unloading †
    I was on Police/Fire/Ambulance emergency †
    The restriction was not clearly signed or marked
    The vehicle was not parked in the location at the time and date the Notice was issued
    ------------------
    Which reason fits my appeal best?

    I no longer remember who the driver was, so I cannot upload evidence for "A valid payment was made" (required).
    Last edited by dirtdog; 29-04-2017 at 3:16 PM.
    • Umkomaas
    • By Umkomaas 29th Apr 17, 3:18 PM
    • 15,962 Posts
    • 24,765 Thanks
    Umkomaas
    What's wrong with 'A valid payment was made'?

    It really doesn't matter what box you tick (unless it identifies the driver), your initial appeal will be dealt with the same as everyone else's - rejected.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • dirtdog
    • By dirtdog 29th Apr 17, 3:24 PM
    • 31 Posts
    • 18 Thanks
    dirtdog
    What's wrong with 'A valid payment was made'?

    It really doesn't matter what box you tick (unless it identifies the driver), your initial appeal will be dealt with the same as everyone else's - rejected.
    Originally posted by Umkomaas
    Thank you Umkomaas, just wanted do be sure I didn't shoot myself in the foot.

    I'll go with your suggestion.
    • dirtdog
    • By dirtdog 18th May 17, 6:22 PM
    • 31 Posts
    • 18 Thanks
    dirtdog
    As predicted Indigo rejected my appeal. They ignored all points in the appeal and went on to suggest that I was the driver (never admitted that) and that I had not paid for the parking.

    Anyway, they supplied my with a POPLA code.

    Below is a draft of my POPLA appeal.

    I appreciate any comments you might have:
    ----------------------
    Dear Sir / Madam,

    This appeal is placed on the following grounds:

    1. Failure to establish owner
    2. The location in question is not relevant land
    3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
    4. No Authority
    5. The signage was not readable so there was no valid contract formed between Indigo and the driver
    6. 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.

    1. 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.


    2. 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 Govia Thameslink Railway 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 Govia Thameslink Railway, 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 the Govia Thameslink Railway 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 it’s 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.


    3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103).

    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. 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, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

    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. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

    The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

    Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

    Understanding keeper liability

    “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.!

    There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, 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, for example, 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. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."

    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.!

    This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:!
    "I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal."

    The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point above.


    4. No 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.


    5. The signage was not readable so there was no valid contract formed between Indigo and the driver

    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 displayed at the entrance to the car park. I made a special visit to the car park to ascertain the positioning and quality of the sign. The only sign is on entrance to the car park. It is difficult to notice as it is placed to the right of the entrance (see photo 1). 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 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.

    The sign also breaches another point in Appendix B, requiring the the sign to identify who the car park is ‘managed by’. This is not optional information, but is clearly marked as ‘required’.

    The BPA code of practice also states (18.3) You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. The badly positioned entrance sign is the only access point for this information. As stated by Indigo, the terms and conditions are only displayed at the entrance to the car park.

    The third party telephone payment system does not communicate any terms and conditions. Therefore, if you pay for your parking by phone, there is nothing to clearly advise how any terms and conditions may be breached.

    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.''

    6. 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 ‘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).

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

    Sincerely,
    Last edited by dirtdog; 19-05-2017 at 7:40 AM. Reason: Added C-m's suggestion
    • Coupon-mad
    • By Coupon-mad 19th May 17, 12:37 AM
    • 51,855 Posts
    • 65,491 Thanks
    Coupon-mad
    Good!

    The only other template point I would add would be the one people keep overlooking but is written in POPLA-speak, the one about the appellant not being shown to be the individual liable (owner, in this case).
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • dirtdog
    • By dirtdog 19th May 17, 7:42 AM
    • 31 Posts
    • 18 Thanks
    dirtdog
    Thank you C-m for you invaluable comments!

    I've updated the previous post with the POPLA appeal.

    If anyone else have any comments I am happy to hear them, otherwise given that Indigo currently cannot with at POPLA I will send the appeal this weekend.
    • dirtdog
    • By dirtdog 25th May 17, 5:26 PM
    • 31 Posts
    • 18 Thanks
    dirtdog
    I intend to attach the following two photos of the signs at the station under point no. 5.

    https://ibb.co/bWNSsa
    https://ibb.co/kRwWJF

    They signs are rather clear about the "display" part of the "contract" however they are hardly very readable with all the small lettering.

    Does anybody see any issues here before I include the photos?
    (I am including them in the POPLA appeal in post #27 in this thread)

    Many thanks!
    Last edited by dirtdog; 25-05-2017 at 5:27 PM. Reason: typos
    • sli88
    • By sli88 26th May 17, 12:26 PM
    • 6 Posts
    • 10 Thanks
    sli88
    FEAR NOT! This happened to me at the exact same station in February. I thought it was ANPR like the car park across the road!

    I got my POPLA appeal yesterday and was successful: It posted in in the bottom of the POPLA appeals thread but will repaste it here:

    Successful
    Assessor Name Mark XXXX
    Assessor summary of operator case
    In this case, it is not clear who the driver of the appellant’s vehicle is. As the operator has not provided a response to the appeal, it has not demonstrated that the Parking Charge Notice is valid.

    Assessor summary of your case
    The appellant’s case is only the courts can impose a penalty for breach of the Byelaws. He has demonstrated that he was not parked in a manner to justify the Parking Charge Notice.

    Assessor supporting rational for decision
    In terms of POPLA appeals, the burden of proof belongs with the operator to demonstrate that it has issued the Parking Charge Notice (PCN) correctly. As the operator has not provided a response to the appeal, it has not demonstrated that the PCN is valid.


    I used the byelaw arguments but it seems Indigo didn't even reply to the Appeal.
    • dirtdog
    • By dirtdog 26th May 17, 12:30 PM
    • 31 Posts
    • 18 Thanks
    dirtdog
    Sweet - that is great news.

    Congratulations on beating them!
    • dirtdog
    • By dirtdog 16th Jun 17, 6:54 PM
    • 31 Posts
    • 18 Thanks
    dirtdog
    Indigo has now uploaded their evidence pack to POPLA.

    It contains some photographs of my vehicle, some bad photos of signs and a copy of their contract with GTR.

    POPLA has given me the option to comment on the evidence pack.

    Is there any reason for me to do this?
    • Coupon-mad
    • By Coupon-mad 16th Jun 17, 7:19 PM
    • 51,855 Posts
    • 65,491 Thanks
    Coupon-mad
    Yes, everyone here does. POPLA are not legally trained so might need a final reminder and heads up as to the holes in the evidence.

    Read other such threads who have been there, done that, and won. Try 'Indigo evidence rebuttal' or 'Indigo POPLA comments' and ''show posts'' to narrow your search down.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • dirtdog
    • By dirtdog 16th Jun 17, 7:25 PM
    • 31 Posts
    • 18 Thanks
    dirtdog
    Thank you C-m.

    I guess I was a bit surprised they didn't just fold.

    Oh, well.
    • Coupon-mad
    • By Coupon-mad 16th Jun 17, 7:26 PM
    • 51,855 Posts
    • 65,491 Thanks
    Coupon-mad
    Yes, it's odd because they lose as POPLA, so they are wasting their time IMHO!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • dirtdog
    • By dirtdog 16th Jun 17, 7:28 PM
    • 31 Posts
    • 18 Thanks
    dirtdog
    And money too, I suppose!
    • dirtdog
    • By dirtdog 18th Jun 17, 7:01 PM
    • 31 Posts
    • 18 Thanks
    dirtdog
    For the sake of anyone else using this thread to deal with Indigo I am posting the text I intend to use a comments with POPLA:

    Any comments are much appreciated.

    --------------------------------
    My comments on the Indigo evidence pack re POPLA code xxxxxxxxxx:

    * Indigo have failed to show that the individual (me) that they are pursuing for this penalty charge is actually the party potentially liable under Railway Byelaws. Neither the driver nor the owner have been identified at any point.

    * I appealed as the registered keeper and as such, I cannot be held liable under any applicable law or byelaw. My appeals covers this vital issue of 'no keeper liability' and Indigo have failed to show any evidence of the identity of the owner (the only party the byelaws say can be liable for a penalty).

    * The case file continues to state that my breach was 'Parked without displaying valid payment'. It fails to counter my stand that this is not a valid breach under Rail Bye law 14 which regulates the terms and conditions of the car park. The pictures of my car in the evidence pack, in no way serve to counter my above argument as the only show failure to display a voucher - which I have argued is not an offence under Rail Byelaw 14.

    * The pack fails to provide evidence of 'Landowner authority' which was the second ground of my appeal to POPLA.

    This concludes my final comments on the evidence.
    Last edited by dirtdog; 18-06-2017 at 7:06 PM. Reason: more comments
    • oaod
    • By oaod 26th Jun 17, 10:57 AM
    • 10 Posts
    • 5 Thanks
    oaod
    Sli88,

    Please can you post your appeal here so I can use it?

    Thank you!
    • waamo
    • By waamo 26th Jun 17, 11:53 AM
    • 2,159 Posts
    • 2,580 Thanks
    waamo
    Sli88,

    Please can you post your appeal here so I can use it?

    Thank you!
    Originally posted by oaod

    I believe it was an adapted version of the one found here


    http://http://forums.moneysavingexpert.com/showpost.php?p=72195225&postcount=14
    This space for hire.
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