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Indigo POPLA appeal sevenoaks
John_Nash
Posts: 1 Newbie
Hello
I was wondering if anyone could help. I have scanned the recent Popla decisions and some similar cases, and have come up with a letter for my Popla stage appeal.
I have my Popla number - I didn't use all of the first round template exactly but did not say I was the driver or tick that box on their online form.
My longish letter is below. I just wanted to check that this is as up to date as it can be and that I am not dropping any clangers or using anything out of date.
In particular, I do want to add in a bit of personal stuff. I got a code 3 PC because my car was parked outside a designated area (it was a strike day so Sevenoaks was rammed). Tis was despite the fact that a) a couple of days earlier in a previous strike their own attendants had said to park anywhere that wasn't blocking others access, and b) I carefully didn't park on some yellow lines (I have pictures showing the yellow lines stop before where my car was parked). Is this useful or going to cause a problem if I include it?. I have included it under my second heading on signage - see bold below.
What do people think of the below?
***
I write to you as the registered keeper of the vehicle XXXXXXX, and I wish to appeal the £100 parking charge notice (PCN) issued by Indigo.
I submit the reasons below to show that I am not liable for the parking charge:
1. No Keeper Liability (fails PoFa 2012 requirements)
2. Signage
3. Provision of unredacted landowner contract for Indigo to:
- manage the car park
- issue charges
- take court action in their own name
4. No proprietory interest in the land
5. No person or body other than the Courts can impose a penalty for breach of Byelaws 14(1), 14(2) or 14(3) of the Railway Byelaws 2005
6. No Breach of Byelaw
1. No Keeper Liability
Indigo’s declared position via their correspondence is based on railway byelaws, which can be found at:
LINK HERE
The Railway Byelaws state, under 14 (4), that: “In England and Wales (i) The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area.” Accordingly, under the Byelaws the owner of a vehicle is liable to pay any outstanding penalty for contravention of the Byelaws.
I believe POPLA will be unable to determine that it has identified the appellant in this case, as the owner of the vehicle. It is a fact that the owner has not been identified. The POFA positively enshrines the right of a keeper not to name the driver nor be 'assumed' to be that individual and nor can it be reasonably assumed in the absence of any evidence, that a keeper or driver is necessarily the owner.
Therefore, in this case, the operator has not shown that the individual who it is pursuing for the charge is in fact liable:
- POPLA cannot lawfully 'presume' that a keeper may be held as the owner, and
- Henry Greenslade has confirmed that POPLA cannot lawfully 'presume' that a keeper may be held as if they 'might' be the driver.
As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable, without the POFA having been followed.
2. Signage
The signage was not compliant with the BPA Code of Practice and was not seen/ able to be 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.
In breach of Appendix B (Mandatory Entrance Signs) Indigo have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival. (as per attached photographs)
The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.
The BPA Code of Practice states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”
For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.
The sign at the entrance to the premises is obscured / rendered illegible by being placed at low height, containing small lettering and enveloped by vegetation so as to not be seen when approaching as well as not being readable/legible to a driver moving in a car when entering the premises. Any alleged contract is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign (on the opposite side of the car park) when entering the station platform area, as this is too late. Another sign containing the Terms and Conditions in the lower car park area where the vehicle was parked is obscured by a ticket machine and was also not visible when walking from parked vehicle up stairs to leave car park to railway station as it is not double-sided.
There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering the road. The requirement to pay £100 is not clear and prominent as the Supreme Court commented on in Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.
A further consideration, as shown in the attached photographs, is that the car was carefully parked outside the area marked as restricted by yellow lines and not obstructing any other vehicle.
The PCN was put on the car on a day in which there was a railway strike, leading to the car park being full. The car park attendants (presumably working for Indigo) have previously told drivers (icluding me) on recent occasions where there have been strikes that it is OK to park anywhere in the car park as long as the vehicle is not obstructing other cars. Indigo are acting unreasonably by (a) telling drivers to park anywhere (b) signing areas in which they don’t want people to park with yellow lines but then giving PCN’s to people parking carefully outside these yellow lines and as instructed by their own operatives.
[I WILL PUT PICS HERE]
3. The provision of an unredacted landowner contract for Indigo to:
- manage the car park
- issue charges
- take court action in their own name
With no standing or authority to neither pursue charges or form contracts with drivers, Indigo have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare license to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.
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.
Railway Land is Not ‘Relevant Land’:-
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 bylaws.
4. No proprietory interest in the land
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Indigo must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has neither automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Indigo to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Indigo and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Indigo. In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.
5. No person or body other than the Courts can impose a penalty for breach of Byelaws 14(1), 14(2) or 14(3) of the Railway Byelaws 2005.
As persuasive evidence, see the Freedom of Information Request here:
LINK HERE
Any definition of “authorised person” (if Indigo argue they are such) is not relevant in this context. There is nothing in the Railway Byelaws 2005 which states that such a person or private firm has any power to impose a ‘penalty’.
Only a Magistrates’ court can, upon laying of the case by the landowner, who are the Train Operating company (TOC).
Certainly a private firm cannot dress up a ‘charge’ and call it a ‘penalty’ just because they happen to be agents of a TOC at a Railway car park and they feel that calling their charge a penalty gives them a more imposing and intimidating status than issuing ‘parking charges’.
I put Indigo to strict proof to show the basis of their ‘penalty’ and state the type of court within which they believe they would be able to enforce this ‘PCN’ in their name, as required by the BPA CoP. If it is the Magistrates Court I put them to strict proof that they have the power and authority to do this and that they have done so, showing case files, claim numbers, and evidence from the TOC as well as a rebuttal of the publicly-available FOI information, if Indigo submit it is incorrect. Indigo will also have to prove with documentary evidence that the money from these alleged 'penalties' goes to the TOC (as a fine or penalty must) and not to Indigo (as a contractual charge dressed up to impersonate a penalty would).
6. No Breach of Byelaw
If Indigo attempt to hold me liable under byelaws, then any breach of byelaws 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''.
This bylaw is about NOT PAYING (i.e. pay and display). Nothing about parking at the end of a row, having paid and displayed. And it is not disputed that the driver had paid and had no further fee to pay.
I respectfully request that this parking charge notice appeal be allowed and the appeal should be upheld on every point.
Yours faithfully,
XXXXX
I was wondering if anyone could help. I have scanned the recent Popla decisions and some similar cases, and have come up with a letter for my Popla stage appeal.
I have my Popla number - I didn't use all of the first round template exactly but did not say I was the driver or tick that box on their online form.
My longish letter is below. I just wanted to check that this is as up to date as it can be and that I am not dropping any clangers or using anything out of date.
In particular, I do want to add in a bit of personal stuff. I got a code 3 PC because my car was parked outside a designated area (it was a strike day so Sevenoaks was rammed). Tis was despite the fact that a) a couple of days earlier in a previous strike their own attendants had said to park anywhere that wasn't blocking others access, and b) I carefully didn't park on some yellow lines (I have pictures showing the yellow lines stop before where my car was parked). Is this useful or going to cause a problem if I include it?. I have included it under my second heading on signage - see bold below.
What do people think of the below?
***
I write to you as the registered keeper of the vehicle XXXXXXX, and I wish to appeal the £100 parking charge notice (PCN) issued by Indigo.
I submit the reasons below to show that I am not liable for the parking charge:
1. No Keeper Liability (fails PoFa 2012 requirements)
2. Signage
3. Provision of unredacted landowner contract for Indigo to:
- manage the car park
- issue charges
- take court action in their own name
4. No proprietory interest in the land
5. No person or body other than the Courts can impose a penalty for breach of Byelaws 14(1), 14(2) or 14(3) of the Railway Byelaws 2005
6. No Breach of Byelaw
1. No Keeper Liability
Indigo’s declared position via their correspondence is based on railway byelaws, which can be found at:
LINK HERE
The Railway Byelaws state, under 14 (4), that: “In England and Wales (i) The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area.” Accordingly, under the Byelaws the owner of a vehicle is liable to pay any outstanding penalty for contravention of the Byelaws.
I believe POPLA will be unable to determine that it has identified the appellant in this case, as the owner of the vehicle. It is a fact that the owner has not been identified. The POFA positively enshrines the right of a keeper not to name the driver nor be 'assumed' to be that individual and nor can it be reasonably assumed in the absence of any evidence, that a keeper or driver is necessarily the owner.
Therefore, in this case, the operator has not shown that the individual who it is pursuing for the charge is in fact liable:
- POPLA cannot lawfully 'presume' that a keeper may be held as the owner, and
- Henry Greenslade has confirmed that POPLA cannot lawfully 'presume' that a keeper may be held as if they 'might' be the driver.
As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable, without the POFA having been followed.
2. Signage
The signage was not compliant with the BPA Code of Practice and was not seen/ able to be 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.
In breach of Appendix B (Mandatory Entrance Signs) Indigo have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival. (as per attached photographs)
The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.
The BPA Code of Practice states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”
For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.
The sign at the entrance to the premises is obscured / rendered illegible by being placed at low height, containing small lettering and enveloped by vegetation so as to not be seen when approaching as well as not being readable/legible to a driver moving in a car when entering the premises. Any alleged contract is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign (on the opposite side of the car park) when entering the station platform area, as this is too late. Another sign containing the Terms and Conditions in the lower car park area where the vehicle was parked is obscured by a ticket machine and was also not visible when walking from parked vehicle up stairs to leave car park to railway station as it is not double-sided.
There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering the road. The requirement to pay £100 is not clear and prominent as the Supreme Court commented on in Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.
A further consideration, as shown in the attached photographs, is that the car was carefully parked outside the area marked as restricted by yellow lines and not obstructing any other vehicle.
The PCN was put on the car on a day in which there was a railway strike, leading to the car park being full. The car park attendants (presumably working for Indigo) have previously told drivers (icluding me) on recent occasions where there have been strikes that it is OK to park anywhere in the car park as long as the vehicle is not obstructing other cars. Indigo are acting unreasonably by (a) telling drivers to park anywhere (b) signing areas in which they don’t want people to park with yellow lines but then giving PCN’s to people parking carefully outside these yellow lines and as instructed by their own operatives.
[I WILL PUT PICS HERE]
3. The provision of an unredacted landowner contract for Indigo to:
- manage the car park
- issue charges
- take court action in their own name
With no standing or authority to neither pursue charges or form contracts with drivers, Indigo have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare license to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.
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.
Railway Land is Not ‘Relevant Land’:-
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 bylaws.
4. No proprietory interest in the land
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Indigo must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has neither automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Indigo to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Indigo and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Indigo. In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.
5. No person or body other than the Courts can impose a penalty for breach of Byelaws 14(1), 14(2) or 14(3) of the Railway Byelaws 2005.
As persuasive evidence, see the Freedom of Information Request here:
LINK HERE
Any definition of “authorised person” (if Indigo argue they are such) is not relevant in this context. There is nothing in the Railway Byelaws 2005 which states that such a person or private firm has any power to impose a ‘penalty’.
Only a Magistrates’ court can, upon laying of the case by the landowner, who are the Train Operating company (TOC).
Certainly a private firm cannot dress up a ‘charge’ and call it a ‘penalty’ just because they happen to be agents of a TOC at a Railway car park and they feel that calling their charge a penalty gives them a more imposing and intimidating status than issuing ‘parking charges’.
I put Indigo to strict proof to show the basis of their ‘penalty’ and state the type of court within which they believe they would be able to enforce this ‘PCN’ in their name, as required by the BPA CoP. If it is the Magistrates Court I put them to strict proof that they have the power and authority to do this and that they have done so, showing case files, claim numbers, and evidence from the TOC as well as a rebuttal of the publicly-available FOI information, if Indigo submit it is incorrect. Indigo will also have to prove with documentary evidence that the money from these alleged 'penalties' goes to the TOC (as a fine or penalty must) and not to Indigo (as a contractual charge dressed up to impersonate a penalty would).
6. No Breach of Byelaw
If Indigo attempt to hold me liable under byelaws, then any breach of byelaws 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''.
This bylaw is about NOT PAYING (i.e. pay and display). Nothing about parking at the end of a row, having paid and displayed. And it is not disputed that the driver had paid and had no further fee to pay.
I respectfully request that this parking charge notice appeal be allowed and the appeal should be upheld on every point.
Yours faithfully,
XXXXX
0
Comments
-
is this in relation to a bylaw car park?
if so
https://forums.moneysavingexpert.com/discussion/56049300 -
It will win, even if Indigo weren't throwing in the towel on all of these, it would beat them if heard by an Assessor anyway!
Nice example of an Indigo railway station POPLA appeal.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
a waste of ink as POPLa will NOT adjudicate on railway bylaw cases <full stop>0
-
Not a waste though, a very useful example in case things change again in future and a useful list a defence points, for when Indigo try some court claims here like the ones they tried in Scotland.
And it encourages people to take Indigo to POPLA, rather than missing the chance to quash their fake penalties.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
sorry CM , unless bylaw laws are re written , nothing can change , HOWEVER I think that with bpa/popla hinting at "clamping" and only making statements on non ANPR type sites (airports are by ANPR) I think things will change to clamping within the next few weeks , with the likes of indigo "hired" as staff working for the TOC
however the "no ticket displayed" and clamped could bring the downturn of many large settups after court action is instigated against them0 -
I vaguely remember NCP getting into a huge and extremely expensive ( for them) mess involving railway stations and clamping in the pastFrom the Plain Language Commission:
"The BPA has surely become one of the most socially dangerous organisations in the UK"0 -
I vaguely remember NCP getting into a huge and extremely expensive ( for them) mess involving railway stations and clamping in the past
correct , but as "employees" would they be guilty , fancy your chances against the likes of "beardy" and his lawyers?
PS: DD says if he kicks off the interweb , mobile and the TV package go back tommorrow0
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