POPLA appeal

xcentric

Came rather later than i should have to this board: issued with fine after parking at train station; ticket machines weren't working (more than one). Didn't have access to phone until about 2pm, paid as soon as I could after that. Had notice on car (apparently issued at 1015 according to photos) when I returned.

Appealed directly (before coming here) saying machines weren't working and I (yes, I said I) had then paid by phone later in day.

So I guess proving I wasn't driver is reduced - should I still include that? (seems daft, as I have receipt for ticket). Seems my defence is that machines weren't working - should I pursue signage ones (there are some, but not easily visible from spot I parked in), but I am aware of the charge - I paid it, for e.g.

Or do I just go on the no machines working, and no access to phone until later. Their view is that I could have paid in station office (not clear to me until after the event) or at other machines - all the ones I tried were not working.

Or is my defence too weak and I should just pay? disagree with their charge, but sometimes cutting losses is the best bet..... thoughts welcomed.

Coupon-mad

Indigo? Doesn't matter if you've said who was driving because railway byelaws cases can only hold the OWNER liable. Neither the driver not the registered keeper at the DVla can be assumed to be the owner.

If so, search for 'Indigo byelaws POPLA owner liability' and copy one.

Indigo will give up as soon as you do a decent POPLA appeal because they've been told that POPLA are going to uphold all byelaws appeals now. A win-win situation for any Indigo POPLA appellant.

Or is it NCP or Meteor?

Or is my defence too weak and I should just pay?

Absolutely not!

xcentric

Indigo.

Thanks, will take a look through the relevant threads.

Coupon-mad

You win then. Indigo cases are being discontinued as soon as people appeal to POPLA.

xcentric

Given you say Indigo cases are being discontinued quite quickly on bylaws, I'm planning to lodge my appeal shortly, as otherwise I might forget and I want to get on with other things......

Draft below:

1. Failure to establish owner.
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.

My understanding is that the owner of the vehicle is liable for any penalty, if it applies, and the owner has not been identified. 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.

NOTE: This is a summarised version of the earlier ones on here - put first as it seems to be the main reason for appeal success. I've also said in my original appeal that I parked and I paid the ticket, so think Iv'e said I'm the driver..... No NTK appeared in post yet but it's early.

2. 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.

I therefore contend that the contravention did not occur and there was no breach of contract.

3. 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.

NOTE: There are signs elsewhere in the car park saying an hour is allowed to pay by phone, I've since found out. Does this matter?

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 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. 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 notice as it is placed to the right of the entrance (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. The car park is busy and having dodge exiting 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.

NOTE: I have photo of signage from car, which shows it to be very small writing

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. Non-working machines
The payment machines in the car park that were tried (more than one) were not working at the time the car was parked, so it was not possible to pay for a paper ticket. I paid by phone at my earliest opportunity, which was early afternoon once I had located a phone, charged it up, found the relevant number, location code and then rang to pay. Indigo do not deny that the machines were not working, but state that there are alternative ways to pay - which I used. I demand that they provide evidence that the ticket machines were working at the time, from engineer reports that show the machine was recently checked and working, and evidence of transactions around the time the driver was able to potentially pay for their ticket at a machine.


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.''

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

Coupon-mad

NOTE: There are signs elsewhere in the car park saying an hour is allowed to pay by phone, I've since found out. Does this matter?

No, it shouldn't do.

Remove the ancient and always pointless #4 (this is never used for over a year except when people read old threads). The UTCCRs haven't been a current statute for over 2 years.

Add instead as your point #4, the one from more recent appeals that says the appellant has not been shown to be the person liable (owner).

And embed your most damning photos into the word document in the signage point, with a line or 2 to explain them. Don't upload them separately, make it easy for POPLA, one illustrated long appeal PDF unloaded under 'OTHER'.

xcentric

Ok, will remove 4. Appelant not owner is point #1.....
will put all this and photos into pdf - unless there is anything more I can do.....

thanks for help.

Coupon-mad

I think that's fine.

xcentric

UPDATE: send appeal in with plenty of photos showing sign hard to read on entry, not visible from parking spot, etc.

APPEAL SUCCESSFUL - they decided not to contest the appeal.

thanks to all on here for advice. Feel free to modify my version for your own use, should you wish to.

Coupon-mad

Yay! Indigo cases always win at the moment, as I said to JodeeMcD here yesterday, showing her this link:

http://forums.pepipoo.com/index.php?showtopic=113283

Indigo cannot win at POPLA now.