Popla Appeal

alig1

Due to Southern Railways disruption only method to travel to Gatwick airport was from St Albans. First time parking there so my passenger bought a weekly ticket as the only alternative displayed on the board was a monthly ticket and there was no guidance for paying was a monthly charge. On return from abroad after 7 days a PCN was found on the car. Examination of the purchased ticket showed that although it had been purchased at 6.40 am the expiry was at 4.00 am the following week and the PCN was issued at 8.56. I wrote challenging the ticket using a template from this site and have had a response giving a popla and Breach Code 1 - not displaying a valid ticket. I did not admit being driver of the car in the appeal letter but have not had a Notice to Keeper. I realise ignorance is not a legal excuse but my justification for the overstay was not being aware of how to update the duration as the options on the payment machine are for daily, weekly and monthly only. Can you please assist on grounds on which I can challenge the ticket? Many thanks for advice in advance

Coupon-mad

Yes, if you have a POPLA code then you can use the template appeal points that are now linked in post #3 of the NEWBIES thread (these are a recent addition).

Put the ones together that make sense - at least 4 seem likely to suit - plus also add one about the land not being 'relevant land' as it is a station car park, subject to railway bylaws. I am sure you will find an example of that wording by searching the forum for 'POPLA relevant land Indigo'. Basically it argues that under bylaws, only the OWNER can be liable and the owner has never been evidenced. And the keeper can't be liable because the POFA doesn't apply to such land.

HTH, show us what you cobble together from the templates then a 'not relevant land' addition.

alig1

Dear coupon mad,

Thanks for your advice. Below is the appeal I have cobbled together As mentioned previously I did appeal to Indigo but as keeper only so i don't know if I should still have received an NTK? Also I didn't quite understand the reference to Post 3 within Newbies in your reply but tried to find relevant bits from various appeals. I would appreciate your review of the following:
Dear POPLA,

I am the registered keeper of the above vehicle and I am not liable for this PCN. I wish to appeal on the grounds numbered 1 - 5 as outlined below:
1. No Breach of Byelaw
The Penalty Notice mentions 'This cark park is regulated by the terms and conditions of parking displayed at the car park in accordance with Ray Byelaw 14'.
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 far as 'appropriate charge is concerned', I submit that a weekly parking ticket valid on the date mentioned in the penalty notice had been purchased (a copy of the same is enclosed).
Hence no contravention of the byelaw has taken place.

2. 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.

3. Unreasonable/Unfair Terms.
The charge being claimed by Indigo is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''
Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
It is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff in good faith. Indigo require strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to a persons detriment and to justify that the charge does not breach the UTCCRs and UCT Act.
In the case of this Penalty Notice, there was no loss caused by the driver given that a valid weekly parking ticket had been purchased for the vehicle in question. Hence it is submitted that the charge claimed by Indigo is an unfair punitive charge.
4. No signage explaining meaning/extension of weekly parking ticket
The signage was not compliant with the BPA Code of Practice - 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 in their response to keeper (20/10/2016) that "there is signage to state that you are able to purchase online,using the Indigo App or over the phone" but there is no such information on the tariff details displayed on the Pay and Display details beside the payment machine as shown in the attached photograph hence this breaches the BPA code of practice.
Appendix B of the BPA Code of Practice states that 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 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 BPA code of practice also states (19.2)
19.2 In the Code ‘parking charges’ means charges arising from
enforcement under
• agreed charges that are advertised in the contract; for example, for an overstay
Again no such charges are displayed.
Additionally, The Thameslink web site shows the price for weekly charging as £34 , with no indication of the duration of the week, (it clearly doesn't mean 168 hours according to the expiry on the ticket) nor does it indicate that one can purchase additional time online.

5 No Notice to Keeper has been received to date, i.e. 35 days after the alleged breach

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

Coupon-mad

I meant, you need the template appeal points from post #3 of the NEWBIES thread here:

https://forums.moneysavingexpert.com/discussion/4816822

Remove this whole entire point below, it is far too old (the UTCCRs were merged within the Consumer Rights Act over a year ago, for example):

3. Unreasonable/Unfair Terms.

Your points #1 and #2 and #4 are fine but you need to make sure you are submitting this POPLA appeal around day 30 (deliberately as late as possible) to get a little nearer the 56 days by which they are timed out to send a NTK. And to get closer to the six months that a 'penalty' has to be enforced.

You need some templates from the NEWBIES thread, e.g. 'no NTK served (which expands on why that matters)' and 'no evidence that the appellant was the individual person liable' (but adapt that one to point out that the Railway bylaws only make it possible to pursue an owner and without any evidence it can never be assumed that the keeper was the 'owner' of a vehicle, any more than it can be assumed that the keeper was the driver. So they've failed to show the appellant is the person liable.