Indigo penalty notice

Umkomaas

haxor wrote: »

:eek:

ok wow,i'm definitely a newbie.

Step by step, learn a little each day. Despite doing this almost every day for well over 4 years, I go to bed having learned a little more that day.

dirtdog

@haxor: I am currently dealing with Indigo the thread here: http://forums.moneysavingexpert.com/showthread.php?t=5631961

I might give you a couple of pointers.

haxor

Hello guys ! I've received my popla code couple of weeks ago.

thats the appeal i was going to send,what you think?

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. Provision of unredacted landowner contract for!Indigo!to:
- manage the car park
- issue charges
- take court action in their own name
3. No proprietary interest in the land
4. Signage
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:
https://www.gov.uk/government/publications/railway-byelaws

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.!

From the evidence provided to POPLA by the operator, 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.!
It is equally true to state that there is also no presumption in law that a driver is necessarily the owner of the car they parked. The operator has not shown that the individual who it is pursuing for the parking charge (me, the driver) is in fact liable for the charge. They cannot switch ambiguously and disingenuously from 'penalty' to 'contractual parking charge' changing the entire previously-argued rationale of the £100, depending on if an appellant has admitted to being 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.!

2. 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.

3. No proprietary 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 un-redacted, 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.


4. 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 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.!
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.

In particular, 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.

Further, over and above the BPA CoP requirements, the following section from the byelaws clarifies that only the Magistrates Court can decide if they are satisfied about the adequacy of any sign or notice.!

See below: ‘no person shall be subject to any penalty’ not if!Indigo!say so and not even if POPLA or any other party says so. POPLA cannot decide liability under byelaws, according to this section (not even if the BPA want POPLA to do so):

Railway byelaws - 24 Enforcement

(4) ''Notices
No person shall be subject to any penalty for breach of any of the Byelaws by disobeying a notice unless it is proved to the satisfaction of the Court before whom the complaint is laid that the notice referred to in the particular Byelaw was displayed.''

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:

https://www.whatdotheyknow.com/request/enforcement_of_railway_byelaw_14

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''.!
Yours Faithfully,

The_Deep

Your appeal is a bit long winded. Here is a shoter one I did which won.


This is an appeal about a Parking Charge Notice issued by the operator for an alleged breach of the the company's terms and conditions in a railway station car park. The operator confirms that this land is covered by Railway Bye- laws and therefore it is not relevant land for the purposes of the keeper liability provisions of Schedule 4 of The Protection of Freedoms Act, under which it says the charge has not been issued..

[FONT=Times New Roman, serif]The operator does not know who the driver was, or the owner, and it would appear that they have made an assumption that was that person. If so, I put them to strict proof of this. [/FONT]

[FONT=Times New Roman, serif]If they are relying on Elliot v Loake, this was a criminal conviction obtained from forensic evidence and has been rejected by many judges as not relevent.[/FONT]

[FONT=Times New Roman, serif]If they are relying on the outcome of Beavis v Parking Eye in the Supreme Court the circumstances bear no resemblance. Beavis took place in a free car park in a shopping centre limited to two hours where there was no opportunity to purchase extra time, and overstayed by almost an hour. The PPC were paying £52,000 a year to manage this car park and PCNs were their only source of income. It was deemed that the charge of £85 was reasonable as there was a necessity to ensure a high turnover of traffic and to discourage abuse from railway commuters. [/FONT]

[FONT=Times New Roman, serif]In the present case, the parking fee was paid, there was no obstruction, and this therefore amounts to an unlawful penalty. [/FONT]

[FONT=Times New Roman, serif]Only the land owner, in this case the Train Operating Company, can take action, and only against the driver or owner, in a Magistrates Court, within six months of the date of the alleged offence, that date has now passed.[/FONT]

[FONT=Times New Roman, serif]Spaces were poorly marked, in some cases there was no marking at all, I attach a photographs taken a few weeks later and put APCOA strict proof that the markings were regularly maintained.[/FONT]

[FONT=Times New Roman, serif]The signs are difficult to read, being up to three metres off the ground with letters as small as 5mm.in white on a pale blue background. It is impossible to see how they are sufficiently prominent to form a contract. I would refer you to Excel v Martin Cutts where the judge disallowed the claim due to poor signs.[/FONT]

[FONT=Times New Roman, serif]The PCN was incorrectly issued by the wrong company under wrong law to the wrong person.. The time has now passed for the alleged offence to be prosecuted in a criminal court, and I request that this charge is therefore cancelled. [/FONT]

[FONT=Times New Roman, serif]Furthermore, it was issued eight months ago and appealed in time. It is only now, some seven months later have I been issued with a PoPLA code. In the meantime I have been subjected to a barrage of threats, begging letters, lies and inducements by debt collection agencies, contrary to the BPA Code of Practice... [/FONT]

[FONT=Times New Roman, serif]Finally, the amount the PPC think they are owed by someone. be it driver, keeper, or owner, is confusing. It started at £60/100, went up to £160, was then reduced to £75, and later came back to £60, rising to £100 if not paid. Do they not know how much they want?[/FONT]

Coupon-mad

I like to add more, to be sure to see them off.

You need to add the bit about 'penalty' notice misleading a consumer as to the status of the 'PCN', as shown in the Lewes station thread last week. Search for the obvious keyword.

haxor

Hello guys,

quick update:

I did appeal with popla,and today I received an update with a response from the parking company.

I have to reply in 7 days,but not sure what to reply as i thought with the first appeal i've explained everything.

Any ideas on how to proceed?

Redx

you rebut their evidence by picking holes in it

use search words on here like REBUTTAL to find 2017 rebuttals , see what was advised and do the same

Coupon-mad

haxor wrote: »

Hello guys,

quick update:

I did appeal with popla,and today I received an update with a response from the parking company.

I have to reply in 7 days,but not sure what to reply as i thought with the first appeal i've explained everything.

Any ideas on how to proceed?

Same as every other POPLA appeal. Surely you've seen this in other POPLA threads you've been reading, and have't stayed in splendid isolation on this little thread alone, asking questions one by one and only looking at the NEWBIES thread and no others?

Look at people who have typed about '7 days comments POPLA' or 'rebuttal POPLA' (always search the forum first - there are your keywords). Always change the search to SHOW POSTS.

haxor

Hello guys - I really need your help here.

I've submitted my popla appeal on **** - the status is still "We have received your comments and we will begin your assessment in due course"

I have today received a letter from ZZPS - I've tried to read many threads but can't find any similar situation like mine.

What should I do?

Many thanks

waamo

Is this a byelaws ticket? Did you get a response from POPLA?

If they are claiming byelaws it has well timed out by now.