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  • FIRST POST
    • SannaKhan
    • By SannaKhan 9th Jun 17, 1:55 PM
    • 5Posts
    • 1Thanks
    SannaKhan
    POPLA Appeal
    • #1
    • 9th Jun 17, 1:55 PM
    POPLA Appeal 9th Jun 17 at 1:55 PM
    Hi All,

    I have briefly glanced through the forum and a lot of you seem to know what you're talking about! I hope you can help me out.

    I recently entered a APNR station car park to collect a train passenger who needed to use the disabled exit, only available in the car park. We were due to be at the station roughly the same time however the train got delayed and I had to wait. I did not park and did not leave my vehicle. I have been sent a fine which when appealed has been rejected. I have now been prompted to either pay or appeal and I wish to appeal. Can anyone help me with articulating this.

    Many many thanks in advance
Page 1
    • Redx
    • By Redx 9th Jun 17, 2:33 PM
    • 14,470 Posts
    • 18,081 Thanks
    Redx
    • #2
    • 9th Jun 17, 2:33 PM
    • #2
    • 9th Jun 17, 2:33 PM
    use the forum search box and INDIGO POPLA APPEAL as search words and draft up your appeal based on the ones you find over the last 12 months

    also look at the NEWBIES sticky thread , post #3 as well

    and make sure that RAILYWAY BYLAWS features prominently because they apply at train stations, not private parking tickets

    plenty of people have been there before you, so its almost a copy and paste job
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Coupon-mad
    • By Coupon-mad 9th Jun 17, 6:01 PM
    • 47,000 Posts
    • 60,369 Thanks
    Coupon-mad
    • #3
    • 9th Jun 17, 6:01 PM
    • #3
    • 9th Jun 17, 6:01 PM
    We assume it is Indigo?

    POPLA appeals for them are easily found and it doesn't even matter if you admitted who was driving (which you should pretty much never do, with private parking firms) but if it's Indigo pretending to issue a real 'penalty' then the arguments are as set out in other Indigo threads.

    Start searching for INDIGO POPLA APPEAL, as Redx said. Change the search default to ''show posts''.
    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.

    • fisherjim
    • By fisherjim 9th Jun 17, 6:09 PM
    • 2,157 Posts
    • 3,197 Thanks
    fisherjim
    • #4
    • 9th Jun 17, 6:09 PM
    • #4
    • 9th Jun 17, 6:09 PM
    I did not park and did not leave my vehicle.
    Originally posted by SannaKhan
    That naive myth has been the downfall of many, I just don't know where you got that idea from!
    To quote the words of the great Count Arthur Strong "You Couldn't make it up"
    • SannaKhan
    • By SannaKhan 14th Jun 17, 10:12 PM
    • 5 Posts
    • 1 Thanks
    SannaKhan
    • #5
    • 14th Jun 17, 10:12 PM
    • #5
    • 14th Jun 17, 10:12 PM
    It was NCP
    • Coupon-mad
    • By Coupon-mad 14th Jun 17, 10:14 PM
    • 47,000 Posts
    • 60,369 Thanks
    Coupon-mad
    • #6
    • 14th Jun 17, 10:14 PM
    • #6
    • 14th Jun 17, 10:14 PM
    OK, so either search the forum for 'NCP POPLA' and read only 2016/17 ones (not older) or adapt an Indigo railway POPLA appeal by changing the operator's name and showing us the draft.

    We will help when we see your draft, it is easy to find a few, see what's needed and copy one. Takes a few days, don't rush it.
    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.

    • SannaKhan
    • By SannaKhan 14th Jun 17, 10:19 PM
    • 5 Posts
    • 1 Thanks
    SannaKhan
    • #7
    • 14th Jun 17, 10:19 PM
    • #7
    • 14th Jun 17, 10:19 PM
    Thank you! You guys are amazing!!
    • Umkomaas
    • By Umkomaas 14th Jun 17, 10:21 PM
    • 13,200 Posts
    • 20,629 Thanks
    Umkomaas
    • #8
    • 14th Jun 17, 10:21 PM
    • #8
    • 14th Jun 17, 10:21 PM
    I have briefly glanced through the forum and a lot of you seem to know what you're talking about!
    There we go, regulars, damned by faint praise!

    @OP - just deal with this like any other 'NCP POPLA' or 'Indigo POPLA' appeal. Search the forum.

    PS - I know what I'm talking about!
    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.
    • SannaKhan
    • By SannaKhan 15th Jun 17, 10:01 AM
    • 5 Posts
    • 1 Thanks
    SannaKhan
    • #9
    • 15th Jun 17, 10:01 AM
    • #9
    • 15th Jun 17, 10:01 AM
    Should I actually be mentioning what happened, as explained in my first post? Is it necessary? The copy that I am using to base my draft on does not really have somewhere suitable that I can put this information in..
    • SannaKhan
    • By SannaKhan 16th Jun 17, 2:29 PM
    • 5 Posts
    • 1 Thanks
    SannaKhan
    1) NCP not using POFA 2012 and stating that Railway Byelaws apply.
    2) Railway Land Is Not ‘Relevant Land’
    3) Amount demanded is a penalty
    4) No keeper liability
    5) Non-compliant signage, forming no contract with driver
    6) Lack of standing / authority from landowner



    1. Not using POFA 2012 and No Breach of Byelaw

    From their rejection of my initial appeal, it appears that NCP are attempting to claim the charge is liable to them under railway byelaws. I reject this and put them strictly to proof on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay NCP.

    There is no Railway byelaw known as: 'Breach code 1: Failing to make payment upon exit from an ANPR Approved Device controlled car park'. If NCP 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''.

    Since the sign (which is too wordy and consists of very small font to be readable before parking) does not in any case, designate any 'appropriate time' or guidance under what constitutes parking then there is no defined appropriate rationale to pay. It cannot be assumed that the vehicle was parked during the period of time.

    So no contravention of any contractual term stated on the sign at that place occurred and the PCN was not properly given.

    2. Railway Land Is Not ‘Relevant Land’

    Under Schedule 4 of PoFA 2012, section 1, it states that:

    “(1) This schedule applies where –
    (a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Following from this, in section 3, PoFA 2012 states that: “(1) In this schedule “relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”. And that: “(3) For the purposes of sub-paragraph (1) (c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question”.

    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 byelaws. Railway land, being governed by Byelaws, is not relevant land and Keeper Liability under POFA does not apply, and therefore NCP are unable to pursue the registered keeper in lieu of the driver’s details.

    In addition, POPLA assessor Steve Macallan found in 6062356150 in September 2016, that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012.


    3. Amount demanded is a penalty


    Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied despite the fact that an informed decision could not be made. The signage cannot be read safely from a moving vehicle.


    4. Failure to establish owner

    Sites designated as Railways by the Secretary of State are subject to statutory control in the form of bylaws. 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.


    5. Non-compliant signage, forming no contract with driver


    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.

    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:

    htteppeepepepe

    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 signs are sporadically placed, indeed obscured and hidden in some areas. They are 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.

    It is vital to observe that these signs do not clearly mention the terms and conditions of what constitutes parking in an ANPR Controlled car park. the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed, so it cannot be assumed that a driver drove past and could read a legible sign, nor was stationary 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, what qualifies as parking when no bays were used.

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

    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.

    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.

    6. Lack of standing / authority from landowner
    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. 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.''

    I do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a TOC gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay APCOA (not that a keeper can be liable anyway on non-relevant land and APCOA cannot enforce byelaws themselves, only the Train Operating Company (TOC) or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court). APCOA have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that APCOA are entitled to pursue these charges in their own right.

    I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that 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 a landowner) and may well be signed by a non-landholder such as another agent. 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 - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put APCOA to strict proof of compliance with all of the above requirements.

    I therefore respectfully request that my appeal is upheld and the charge is dismissed.

    Yours sincerely,


    Have I done this correctly?
    • Coupon-mad
    • By Coupon-mad 16th Jun 17, 8:51 PM
    • 47,000 Posts
    • 60,369 Thanks
    Coupon-mad
    Should I actually be mentioning what happened, as explained in my first post? Is it necessary?
    Originally posted by SannaKhan
    No. POPLA will be shown your first appeal by NCP anyway, if NCP bother to contest.

    The one you have found is good, but is missing some of the better points in this one:

    http://forums.moneysavingexpert.com/showthread.php?p=72633904#post72633904

    Grab it all, except the last point about fraud, and then remove any repetition, and you are done and will win!
    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.

    • henryreviews123
    • By henryreviews123 17th Jun 17, 9:26 AM
    • 1 Posts
    • 1 Thanks
    henryreviews123
    Nothing more to say, UP
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