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  • FIRST POST
    • CelticBoy
    • By CelticBoy 5th Oct 17, 2:05 PM
    • 5Posts
    • 0Thanks
    CelticBoy
    Reponse to POPLA appeal
    • #1
    • 5th Oct 17, 2:05 PM
    Reponse to POPLA appeal 5th Oct 17 at 2:05 PM
    Hi,
    I park most days in a work railway car park and pay a montly ticket on the day I received a ticket my monthly had expired and I forgot until later in the day to buy a ticket whilst at work. I submitted an appeal to POPLA based on the grounds I found on templates on this forum. See below for the reponse to my appeal from the parking operator. Any advice welcome ! Thanks

    Operator Case Summary
    This appeal is contested on the following grounds: * The Appellant had parked in breach of the terms and conditions of the site as the vehicle was observed and evidenced “parked without displaying valid payment” and despite the relevant checks at the time of issue of the penalty notice no cashless parking was detected; * The signage makes it clear that if parking does not comply with the terms and conditions a Penalty Notice will be issued; * The signage on site detailing the terms and conditions which users of the car park are required to adhere to; * The photographs submitted as evidence clearly show the vehicle parked in a bay without the requisite payment for parking; * It is the driver’s responsibility to ensure parking is in accordance with the terms and conditions of the site as detailed in the signage on site; * The appellant claims he paid for parking however the evidence submitted shows the payment was made at 18:27 to cover the period of parking from 18:27 on 19/07/2017 to 04:00 on 26/07/2017. It is therefore asserted payment was only made retrospectively due to the issue of the penalty notice which he would have seen on his return to the vehicle; * The car park operator maintains the Penalty Notice was issued correctly and the balance stands. * Accordingly, this appeal is contested. Furthermore the appellant has submitted further points within his POPLA appeal that he did not include in his original appeal. These points are recognised as template appeals relating to Parking Charge Notices not relevant in this matter sine this was a Penalty Notice issued under Railway Byelaws as the vehicle was parked on Railway Assets. However for completeness and to address each of the additional 5 points raised we submit as follows: Appellant: 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. Response: As evidenced in the photographs submitted herewith the sign is prominent, clear and legible. Written in easy to understand terms and repeater signs are located throughout the car park reminding motorists of the requirement to pay and display and therefore the suggestion that the requirement to pay is not clear is not only contested but also asserted that the claim is at best far fetched in an attempt to avoid payment of the penalty notice. Appellant: PCN Admin Centre has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge. Response: Firstly the creditor as identified on all correspondence is Indigo Park Solutions UK Ltd. PCN Admin Centre is purely an agent processing the administration for the same. Again, the appellant has confused Parking Charges notices (PCNs) with this Penalty Notice by quoting PoFA2012 legislation relating to PCNs. The owner remains liable for Penalty Notices under Railway Byelaw 14. In any case the appellant identified himself as the driver in the original appeal communication. Appellant: No evidence of Landowner Authority - PCN Admin Centre id put to strict proof of full compliance with the BA Code of Practice. Response: Again, the creditor as identified is Indigo Park Solutions Ltd who hold a contract for the parking management and enforcement on this site. Agreement is submitted in evidence. Does the appellant genuinely believe that any car park operator could operate on any site, erecting signage and enforcing parking without the consent of the landowner? This point is seen purely as an attempt to waste time, cost and resources. Appellant: The charge is unconscionable and offends against the Penalty rule which was plainly engaged in the case of ParkingEye-v-Beavis. Response: Again, the appellant is confusing PCNs & Penalty Notices with the reference to case law and in any case the sum of the Penalty Notice is fair, reasonable and the industry standard for Penalty Notices issued under Railway Byelaws. Another attempt by the appellant to obfuscate his liability for payment of the Penalty Notice. Appellant: his charge is incompatible with the rights under the lease - as decided by the Appeal case of Jopson-v-HomeGuard Services case number B96F0A9R on 29 June 2016 which also had that the Beavis case does not apply to this sort of car park. Response: The Jopson case related to a PCN regarding resident rights and access. This matter relates to a Penalty Notice issued under Railway Byelaws and therefore the case law quoted is completely unrelated to this matter perhaps as a result f the appellant trying to avoid payment of the penalty notice by any means including claims of unrelated case law n an attempt to put the CPO to further costs and expense to refute. Appellant: The parking charge was paid on the day the vehicle was parked via the standard phone system and prior to returning to the vehicle and finding the penalty charge. Response: Payment was made 9 hours after the Penalty Notice was issued. Furthermore, the payment did not cover the period of parking that immediately preceded the issue of the Penalty Notice or the 9 hours 10 minutes after it was issued and it is asserted that the appellant/driver only made the payment when realising he had been issued with a Penalty Notice in an attempt to claim payment had been made to try to avoid payment of the Penalty Notice issued accordingly. It is further asserted that had the appellant genuinely believed that it was acceptable not to pay for parking on this site there would not have been the need for him to try various allegations and smokescreens, quoting case law and legislation inaccurately in an attempt to avoid payment of the Penalty Notice particularly as he had included an additional five elements for avoidance not quoted in the original appeal.
Page 1
    • paulstevens64
    • By paulstevens64 5th Oct 17, 4:11 PM
    • 35 Posts
    • 49 Thanks
    paulstevens64
    • #2
    • 5th Oct 17, 4:11 PM
    • #2
    • 5th Oct 17, 4:11 PM
    Hi Celtic boy,


    1) Suggest you edit your post and put in some paragraphs. The wall of text is too hard to read.


    2) We need to see your POPLA appeal as well.


    3) Did your appeal cover "Railway Land" Bylaws etc? As this will be key to rebutting the PPC's comments.
    • CelticBoy
    • By CelticBoy 5th Oct 17, 5:46 PM
    • 5 Posts
    • 0 Thanks
    CelticBoy
    • #3
    • 5th Oct 17, 5:46 PM
    • #3
    • 5th Oct 17, 5:46 PM
    Hi Paul,

    Thanks for your reply. I hadn't realized that a separate set of rules applied on railway property and when I went throught the forum I picked out items for my appeal based on other posts but hadn't seen anything specific to railways so looks like I may have picked the wrong items for appeal

    In any event I have included below the full grounds I submitted for appeal below. The response to follow as not all will fit in 1 post
    Cheers

    1.
    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:

    ,removedurl.

    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:

    .removed url.

    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, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention 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 - 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:

    .removed url.

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

    .removed url.

    ''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:

    .removed url.

    ''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:

    .removed url.

    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 PCN Admin Centre 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.




    2.
    PCN Admin Centre 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.
    No evidence of Landowner Authority – PCN Admin Centre 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 Parking Charge 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

    4.

    This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis


    In this case, we have an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.

    At the Supreme Court in Beavis, it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

    This is NOT a 'more complex' case by any stretch of the imagination. At 32 in the Beavis decision, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:

    .removed url.

    - Schedule 2: 'Consumer contract terms which may be regarded as unfair':
    ’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
    ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

    This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.

    In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed my next appeal point shows that a Senior Circuit Judge in a 2016 appeal case supports my view.





    5.
    This charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.

    In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

    There can be no legitimate interest in punishing authorised loading/unloading, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for permitted unloading/loading by a driver who has legitimate business and rights to do so.

    These rights supersede any signs, which are of no consequence except to deter rogue unwanted drivers from leaving their vehicles when they have no business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to load/unload. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).

    This question was tested recently in an Appeal case in June 2016 (transcript attached as evidence for POPLA*). Please note this is an Appeal case, decided by a Senior Circuit Judge and as such, its findings on the definition of 'parking as opposed to loading' and the findings on leaseholder/permitted visitor/loading/delivering rights of way superseding parking signs, are persuasive on the lower courts.

    Beavis did not deal with any of these matters - nor was it relevant to a 'permit' car park - but the following case and transcript I have provided, is relevant and the Judge even states that Beavis DOES NOT APPLY to this type of car park:

    Appeal case at Oxford County Court, 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016:

    Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. After an initial appeal to the Independent Parking Committee was rejected, Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitors arguing that the charge was incompatible with the terms of the existing lease which also extended to certain rights for permitted visitors when loading/unloading. The Judge found that Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs.

    I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 (transcript attached as evidence for POPLA**).

    District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''


    6.
    The parking charge was paid on the day the vehicle was parked via the standard phone system and prior to returning to the vehicle and finding the penalty charge.
    • CelticBoy
    • By CelticBoy 5th Oct 17, 5:47 PM
    • 5 Posts
    • 0 Thanks
    CelticBoy
    • #4
    • 5th Oct 17, 5:47 PM
    • #4
    • 5th Oct 17, 5:47 PM
    Here is the response in slightly less block format:

    Operator Case Summary
    This appeal is contested on the following grounds:
    * The Appellant had parked in breach of the terms and conditions of the site as the vehicle was observed and evidenced “parked without displaying valid payment” and despite the relevant checks at the time of issue of the penalty notice no cashless parking was detected;

    * The signage makes it clear that if parking does not comply with the terms and conditions a Penalty Notice will be issued;

    * The signage on site detailing the terms and conditions which users of the car park are required to adhere to;

    * The photographs submitted as evidence clearly show the vehicle parked in a bay without the requisite payment for parking;

    * It is the driver’s responsibility to ensure parking is in accordance with the terms and conditions of the site as detailed in the signage on site;

    * The appellant claims he paid for parking however the evidence submitted shows the payment was made at 18:27 to cover the period of parking from 18:27 on 19/07/2017 to 04:00 on 26/07/2017. It is therefore asserted payment was only made retrospectively due to the issue of the penalty notice which he would have seen on his return to the vehicle;

    * The car park operator maintains the Penalty Notice was issued correctly and the balance stands.

    * Accordingly, this appeal is contested.

    Furthermore the appellant has submitted further points within his POPLA appeal that he did not include in his original appeal. These points are recognised as template appeals relating to Parking Charge Notices not relevant in this matter sine this was a Penalty Notice issued under Railway Byelaws as the vehicle was parked on Railway Assets. However for completeness and to address each of the additional 5 points raised we submit as follows:

    Appellant: 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.

    Response: As evidenced in the photographs submitted herewith the sign is prominent, clear and legible. Written in easy to understand terms and repeater signs are located throughout the car park reminding motorists of the requirement to pay and display and therefore the suggestion that the requirement to pay is not clear is not only contested but also asserted that the claim is at best far fetched in an attempt to avoid payment of the penalty notice.

    Appellant: PCN Admin Centre has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

    Response: Firstly the creditor as identified on all correspondence is Indigo Park Solutions UK Ltd.
    PCN Admin Centre is purely an agent processing the administration for the same. Again, the appellant has confused Parking Charges notices (PCNs) with this Penalty Notice by quoting PoFA2012 legislation relating to PCNs. The owner remains liable for Penalty Notices under Railway Byelaw 14. In any case the appellant identified himself as the driver in the original appeal communication.

    Appellant: No evidence of Landowner Authority - PCN Admin Centre id put to strict proof of full compliance with the BA Code of Practice.

    Response: Again, the creditor as identified is Indigo Park Solutions Ltd who hold a contract for the parking management and enforcement on this site. Agreement is submitted in evidence. Does the appellant genuinely believe that any car park operator could operate on any site, erecting signage and enforcing parking without the consent of the landowner? This point is seen purely as an attempt to waste time, cost and resources.

    Appellant: The charge is unconscionable and offends against the Penalty rule which was plainly engaged in the case of ParkingEye-v-Beavis.

    Response: Again, the appellant is confusing PCNs & Penalty Notices with the reference to case law and in any case the sum of the Penalty Notice is fair, reasonable and the industry standard for Penalty Notices issued under Railway Byelaws. Another attempt by the appellant to obfuscate his liability for payment of the Penalty Notice.

    Appellant: his charge is incompatible with the rights under the lease - as decided by the Appeal case of Jopson-v-HomeGuard Services case number B96F0A9R on 29 June 2016 which also had that the Beavis case does not apply to this sort of car park.

    Response: The Jopson case related to a PCN regarding resident rights and access. This matter relates to a Penalty Notice issued under Railway Byelaws and therefore the case law quoted is completely unrelated to this matter perhaps as a result f the appellant trying to avoid payment of the penalty notice by any means including claims of unrelated case law n an attempt to put the CPO to further costs and expense to refute.

    Appellant: The parking charge was paid on the day the vehicle was parked via the standard phone system and prior to returning to the vehicle and finding the penalty charge.

    Response: Payment was made 9 hours after the Penalty Notice was issued. Furthermore, the payment did not cover the period of parking that immediately preceded the issue of the Penalty Notice or the 9 hours 10 minutes after it was issued and it is asserted that the appellant/driver only made the payment when realising he had been issued with a Penalty Notice in an attempt to claim payment had been made to try to avoid payment of the Penalty Notice issued accordingly. It is further asserted that had the appellant genuinely believed that it was acceptable not to pay for parking on this site there would not have been the need for him to try various allegations and smokescreens, quoting case law and legislation inaccurately in an attempt to avoid payment of the Penalty Notice particularly as he had included an additional five elements for avoidance not quoted in the original appeal.
    Last edited by CelticBoy; 05-10-2017 at 5:50 PM.
    • Fruitcake
    • By Fruitcake 5th Oct 17, 6:08 PM
    • 40,416 Posts
    • 80,738 Thanks
    Fruitcake
    • #5
    • 5th Oct 17, 6:08 PM
    • #5
    • 5th Oct 17, 6:08 PM
    Luckily the PoPLA decision is not binding on the motorist and can be ignored unless the scammers try court.

    You reveal the driver's identity in your appeal, and it has been revealed in your first post. In future, always refer only to The Driver and The Keeper.
    Luckily, neither are liable where railway byelaws apply.
    Generally, only the vehicle owner can be held liable, only for trespass, only by the landowner which is usually Network Rail or the Train Operating Company, and only up to six months after the alleged event.

    The chances of any of the above happening in a magistrate's court is slim to say the least, but Indigo will have you believe otherwise.

    You are now in ignore mode unless the owner gets a summons for trespass. This won't come from the PPC who will get nothing if that happens.

    PoPLA have stated that the owner is liable yet only know the identity of the driver and the keeper. DVLA do not hold owner details so it looks like the PoPLA assessor doesn't understand either this distinction with regard to railway byelaws, or how the POFA 2012 works.
    Last edited by Fruitcake; 05-10-2017 at 6:13 PM.
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    • CelticBoy
    • By CelticBoy 6th Oct 17, 11:17 AM
    • 5 Posts
    • 0 Thanks
    CelticBoy
    • #6
    • 6th Oct 17, 11:17 AM
    • #6
    • 6th Oct 17, 11:17 AM
    Hi Fruitcake,

    Thanks for the reply.

    I think you may have misunderstood, the response I added above is the response from the operator i.e. Indigo so there hasn't been a POPLA decision as yet.

    On your other points yes agreed, I shouldn't have revealed identity, I had actually already been caught out on that by the Indigo appeal form where they get you to indicate the driver.

    I screwed up here with the wrong template for POPLA, I have since seen there is a different one for railway byelaws, mea culpa

    Thanks for the advice. I will paste POPLA decision on the boards when I get it and add to this post if I can still find it, bery busy board !
    • paulstevens64
    • By paulstevens64 6th Oct 17, 4:01 PM
    • 35 Posts
    • 49 Thanks
    paulstevens64
    • #7
    • 6th Oct 17, 4:01 PM
    • #7
    • 6th Oct 17, 4:01 PM
    Hi Celtic Boy


    Do not give up yet.


    Your next move is to rebut the evidence provided by the PPC (e.g. the reply that you have had via POPLA).

    You have 7 days from when this was sent to you, best to reply with in 6 to be sure.


    Using your new knowledge of Byelaws and Non relevant land, you can hopefully rescue this.


    In summary, Only the land owner can issue a "penalty" charge notice to you. The PPC can only issue a "parking charge notice". they are very different things. The PPC are lying to you and pretending that they can pursue you for the "penalty" they cannot.


    In your rebuttal you are not allowed to bring in any new points that are not already in your initial POPLA appeal.


    Go through the PPC evidence and pull it apart line by line.


    E.G.:


    The claimant says: "The signage makes it clear that if parking does not comply with the terms and conditions a Penalty Notice will be issued"


    I attach a photo that clearly show that the sign says ""100 charge for not displaying a ticket"


    (I have obviously made up that point, but hopefully you get the idea)


    In rebutting each point that the PPC have made, you will get to bring up the issue of Penalty/Railway land/relevant land etc.


    E.G. you could say The Claimant says:


    Response: Firstly the creditor as identified on all correspondence is Indigo Park Solutions UK Ltd.
    PCN Admin Centre is purely an agent processing the administration for the same. Again, the appellant has confused Parking Charges notices (PCNs) with this Penalty Notice by quoting PoFA2012 legislation relating to PCNs. The owner remains liable for Penalty Notices under Railway Byelaw 14. In any case the appellant identified himself as the driver in the original appeal communication.


    My Response is


    1) If the owner of the car is responsible for the penalty then please pursue them. The owner of the car is a different entity to the driver, or the keeper. The claimant has shown no evidence as to the identity of the Owner of the vehicle is


    2) If this is indeed a Penalty, then only the land owner can pursue the breech of byelaws, not the parking management company. And the land owner would have to pursue the Actual Owner of the car who has not been identified, in a county court, within 6 Months of the offence occurring.


    I hope this makes sense, and that with the "railway" appeal that you have now found, you can argue against all of the issues that they have raised.


    Send you final rebuttal document back with the 6 days, and eith e-mail or attach it to your reply.


    Paul
    • CelticBoy
    • By CelticBoy 14th Oct 17, 11:57 PM
    • 5 Posts
    • 0 Thanks
    CelticBoy
    • #8
    • 14th Oct 17, 11:57 PM
    • #8
    • 14th Oct 17, 11:57 PM
    Hi paulstevens64,

    Thanks for your detailed reply.

    Unfortunately I got busy with other things i.e. life ) and missed your reply. I"ll post back here when I get the POPLA appeal decision or else in the POPLA decisions section of the Board.

    Thanks Again, I"m sure this info will come in handy in any event as I have just submitted another POPLA appeal !


    Cheers
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