Hove station, Indigo appeal rejected, now at POPLA stage

Hi everyone, I've been reading the forums for a while after the driver received a PCN in June (the driver bought a ticket and stuck it on the windscreen but it fell off during the day). I must say, you are all bloody fantastic and after educating myself and reading loads of posts I absolutely will not budge - Indigo are thiefs and crooks!

A summary of the facts is in item 5 of my appeal, below - should I move it to item 1?
The PCN was issued on 11th June, Indigo obviously rejected the appeal, so 56 days for appealing to POPLA if my calculations are correct means Sunday 6th August. If you fine ladies and gentlemen could offer input into and critique of the below, I would be most grateful




Dear Sirs,

I refer to a PCN issued by the Operator Indigo on 11th June 2017:

POPLA Ref: XXX
Indigo PCN Ref: XXX

I believe the PCN was issued wrongly and unlawfully for the following reasons:

1. A compliant Notice To Keeper was never served - no Keeper Liability can apply
2. The operator has not shown that the individual who it is pursuing is in fact the driver
3. Railway Land Is Not ‘Relevant Land’
4. No evidence of Landowner Authority
5. Frustration of Contract
6. No Breach of Byelaw
7. Penalty Charge Notice status

1. A compliant Notice To Keeper (NTK) was never served - no Keeper Liability can apply
This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (PoFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
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.

In this case, no other party apart from an evidenced driver 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 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 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 cannot transfer the liability for the charge using the POFA.

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.''

3. 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 Indigo are unable to pursue the registered keeper in lieu of the driver’s details.

4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As this Operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this Operator to strict proof of full compliance:

“7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 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”

5. Frustration of Contract
The notice wrongly states: “Breach code: 1 – Failing to display a valid ticket or voucher”
This cannot correctly describe the alleged contravention. As you see from the photographs below:
a) On 11th June 2017 the driver parked according to the car park terms and conditions (in parking bay 23 as demonstrated by photograph 1 (my photograph) and photograph 3 (the operator’s photographs))
b) The driver purchased ‘a valid ticket’ by paying £2 at 11:20am immediately after parking as required by the car park terms and conditions (see photograph 2 for proof of validity of ticket, with an expiry time of 04:00am the following day, 12th June 2017)
c) The driver affixed the ticket to the windscreen as stipulated by the requirement on the ticket itself – ‘USE STICKER ON BACK TO FIX TO WINDSCREEN' (in capital letters as it is on the ticket itself – photograph 1 and 2 demonstrates this) then took a photograph of the car and left the car park
At some time during the day the ticket fell off the windscreen and fell into the passenger footwell. The Parking Attend presumably not seeing a ticket on the windscreen and not looking in the footwell issued a PCN. Nevertheless, a valid ticket was correctly purchased and displayed by the driver to all means within the control of the driver, in good faith according to the instructions and terms and conditions of the car park. The driver cannot be held responsible for the amount, quality or type of glue used on the parking permit.
Furthermore, after appealing to Indigo, their rejection statement of 9th July 2017 states “It is the customer’s responsibility to make sure a valid ticket is visibly on display on the window or dashboard of your vehicle before leaving your car parked.” The facts outlined above agree with this statement and were submitted during the appeal process with Indigo, therefore the appeal should have been allowed by Indigo at first instance.

I therefore contend that the alleged contravention did not occur and therefore the PCN was not properly given.

<<<photographs 1, 2 and 3 will be attached, happy to link to if it would help?>>>
6. No Breach of Byelaw
There is no railway byelaw known as: 'Breach code 1: Failing to display a valid ticket or voucher'. 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''.

As described in 5 above, the appropriate payment was made in good faith as viewed by a reasonable person and proof has been provided so no contravention of any contractual term stated on the sign at that place occurred and the PCN was not properly given.

7. Penalty Charge Notice status
The PCN was described as, and purported to be a 'Penalty Charge Notice' (see photograph 4 below)and this impersonates a level of authority a private parking charge does not have, meaning that this 'PCN' was not properly described in terms of status and authority, and thus not properly given. Not only is use of the misleading word 'penalty' a serious breach of the BPA Code of Practice but it is also a misleading business practice. It is trite law that any ambiguity in wording must be interpreted in the way that most favours a consumer; the 'most favourable' legal interpretation of course meaning that the PCN must be cancelled. The status of a 'penalty' charge notice is certainly ambiguous and misleading, especially when issued on byelaws land, and cannot be upheld by POPLA as if it was a private parking charge with a completely different legal status.


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

Yours sincerely,
Firstname Surname



Thanks!