Indigo Railway Penalty Notice

u2_storm

Hello,
I would kindly ask for some advise.
I car had a penalty notice stuck onto the car today by Indigo parking solutions UK on behalf of Govia Thameslink Railway. Breach code 01 parked without displaying valid payment.

Back story -
When left the car I send a text with the details on ( I took a photo of the sign so I could make sure the details I had where correct) as I was traveling on the train however, I didn't get a reply so a couple of hours later while still 50+ miles away I then called the system (which already debit card details from before) I paid the parking charge (£3.xx) and carried on with my afternoon. When I got back I found a penalty notice stuck onto the car.

Even zoomed in on the photo I cannot read the T&C of the sign only the number to call and text and the location code. I had no intention of not paying however there system didn't tell me payment hadn't been taken and I did all I reasonably could to pay for parking.

What would be your suggested course of action? I have NOT contacted the PPC however, a payment was made with a debit card. Can they use that against me?

I was going to send a template letter saying I cannot identify the driver however, payment was made via the automated phone system. Shall I ignore that fact or challenge it? (not disclosing drivers details of course.

Many thanks!

pappa_golf

pointless argueing with the PPC , they just want your money .

the chances are that this is a bylaw offence , and as such the PPC can swivel , because the land is non applicable for private parking charges , however the landowner can start court action for trespass , but only in the first 6 mths

send the appeal from the newbies thread (blue one) , dont alter it or say anything about bylaws

you want a popla code from them , you do know that all bylaw cases are on hold? , sit back and chill

u2_storm

Hi Pappa golf - thanks for the prompt reply.

The penalty notice was under "railway byelaw 14" . I did read all bylaw cases are on hold but wasn't sure when that was last updated.

I will send this off on day 26.

Date


Dear Sirs

Re: PCN No. ....................

I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers.

Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. You have omitted clear information about the process for complaints including a geographical address of the landowner.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,

pappa_golf

thats the one , you can appeal to popla when they reply

take tour time , send at the date suggestef , ideally you want this to time out (6 mths)

https://popla.co.uk/

u2_storm

Hello again - I sent that though over the weekend and I have had a response back with a POPLA number.
They have provided photographic evidence (a few photos of my car but you cannot see the dash board of the car due to the refection)

"You have now reached the end of our internal appeals procedure. Should you remain dissatisfied with this decision, you may further your appeal to the Parking On Private Land Appeal service (POPLA) within 28 days of this notice of rejection, details of which are available at popla dot co dot uk
Remember to use your 10 digit verification code shown at the top of this letter."

So I do now have a POPLA number!
What is the best course of action now would you suggest?

pappa_golf

the obvious thing to do would be to appeal to popla now! take your time , send as late as is prcticable m, make sure you include "BYLAW CASE" in bold at top of appeal

spend some time on this forum and pepipoo , looking for a recent popla appeal that is simular to yours ,

nigelbb

u2_storm wrote: »

Hello again - I sent that though over the weekend and I have had a response back with a POPLA number.
They have provided photographic evidence (a few photos of my car but you cannot see the dash board of the car due to the refection)

The photo of the car is pointless as there is no dispute that the car was there. There will be no ticket displayed as the OP paid by phone. You need to get a photo of the sign. Chances are it has conflicting T&Cs e.g. tickets must be displayed but then has the option of pay by phone. Does it state that payment must be made before the motorist leaves the car park or within 10 minutes of arrival? I'm betting it doesn't as the T&Cs won't have been updated to reflect the pay by phone option. If it's not on the sign then there is no justification for the 'fine'.

u2_storm

Thank you for the quick reply!

On the day (as soon as I parked and on my way to catch the train I actually took a photo of the sign so I could text the system. I cannot actually see the T&C's in that photo and even zooming into the photo you cannot view them!

I can go back to the car park and take another photo with a proper camera (not an iPhone) but the sign closest to where I parked is so high I'm not sure anyone could actually read it..

I will go and take a photo during the day and post them back here.

pappa_golf

place a person next to / side of the sign to show its height from the ground , place a newspaper in the persons hands to show the hight of the headlines on the page , do not stand on grass , stand or sit in your car or next to machine

there seems to be about a 3 mth delay now with cases marked as "bylaws , just go slowly and this will time out before the next election !

u2_storm

Good afternoon, It's coming close to having to appeal to POPLA...

I did visit the car park again to take photos but I would also like your advise on the POPLA appeal. Do I need to add anything else to this?

I see someone else had the same issue and I've copied most of what they have written below:

1. No Breach of Contract
The ticket wrongly states:
'Breach code 1: Failing to display a valid ticket or voucher'
This cannot correctly describe a contravention in this car park, where pay-by-phone is allowed and no 'display' of any voucher is needed.

There was no ticket or voucher to display because payment was made by phone, evidenced by the attached receipt.
Payment was made whilst the car was parked that day. There is no time limit on the sign as drafted. The contract law doctrine of 'contra proferentem' applies to all consumer contracts involving contract in written form. Namely, the interpretation of ambigiuous wording which best favours a consumer MUST prevail and that is what would be applied by the courts and 'contra proferentem' was applied between 2012 -2015 by the outgoing POPLA Assessors, consistently.
I therefore contend that the contravention did not occur and there was no breach of contract.
2. No Breach of Byelaw
There is no Railway byelaw known as: 'Breach code 1: Failing to display a valid ticket or voucher' and nor can that be a possible contravention in a pay-by-phone car park because it is not possible to display a 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''.
Since the sign (which is too wordy/small font to be readable before parking) does not in any case, designate any 'appropriate time' then there is no defined appropriate time to pay. That time cannot be assumed and could very likely be at any time during the all day parking licence, before removing the car, because nothing instructs otherwise. It would be different if this was only a pay and display 'paper ticket on dashboard' car park but it is not.
An average circumspect driver and genuine train passenger, knowing that pay-by-phone is allowed for all day parking, can reasonably conclude that pay-by-phone can be done on the train or whenever they are able to get a signal to make that payment whilst the car is parked. There is no rule stating that payment must be made earlier, within xx minutes/hours or anything whatsoever in any 'instructions at that place'.
So no contravention of any contractual term stated on the sign at that place occurred and the PCN was not properly given.

3. 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 ANPR use and signage at the location.

On the date in question payment was made using a third party pay by phone provider and therefore it is deemed that Indigo do not have any right to recover any charges, as revenue from the tariffs typically go directly to the landowner and payment was made to a separate trading entity.

4. 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.
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. As the keeper, 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 read as it is placed to the far right of the entrance on the road which is a busy road which does not allow you stop and read, not in the line of sight of a car entering the car park (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 too actually read the sign I had to walk across the road and stand in the road to actually fully read it.
The accessiblity of the sign is clearly a breach of health and safety regulations. The car park is busy and having dodge 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.

6. Failure to establish keeper liability.
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. I was a passenger in the car on the day in question. The driver has not been identified, therefore as keeper I cannot lawfully be held liable for this charge. If Indigo argue otherwise then they must produce the bylaws and maps to show that this part of the Railway is somehow exempt from statutory control. The onus falls upon Indigo to demonstrate this and I put them to strict proof on this point.

I am merely the day to day keeper of the car, neither established as the driver nor am I the registered keeper or owner. 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 (neither established as driver nor owner).

Indigo have failed to serve a Notice to Keeper. It has been completely omitted, Indigo appear to have assumed it is not needed when a keeper appeals against a windscreen ticket. But in the schedule it is clear that a NTK is a fundamental document where the Operator does not know who the driver was (and in this case there have been no admissions on that matter.) Therefore even if this was a site where bylaws affecting parking did not take precedence, Indigo have failed to establish keeper liability by forgetting the NTK.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case (I am the 'keeper' as defined in the POFA Schedule 4 because I have day to day responsibility for the car). One of these requirements is the issue of a ‘notice to keeper’ (NTK) compliant with certain provisions after obtaining address data from the DVLA.

This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.

To be clear, neither the owner (not me) the registered keeper (also not me) nor the day to day 'keeper' (me) can be held liable because:

(a) Schedule 4 does not apply on land which is not 'relevant land' so keeper liability does not exist in law in this case.

(b) The second condition for keeper liability has not been met because the operator has failed to meet the prescribed statutory process, namely to give a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8.

(c) The third condition for keeper liability has not been met because the operator has not 'made an application' for the keeper’s details which MUST be specifically 'provided by the Secretary of State' (i.e. the DVLA, regardless of whether a keeper has appealed and supplied an address). There is no alternative within the applicable law. Appeals do not exempt an operator from the statutory procedures.
That completes my case for appeal. I request that my appeal is upheld.
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.''


The text in bold I'm not 100% on.

Also, silly question-can I attach photos on this forum?

Coupon-mad

Also, silly question-can I attach photos on this forum?

You can host them in Dropbox or tinypic etc., then show us a broken link, as you are a newbie, then we will convert the link back.

Most people just change http to hxxp to show us photo links.