Another Indigo PCN

stoxman

Dear all,

Thanks so much for the amazing body of knowledge already on here. I've had a good trawl through the Newbie and other threads.

My case briefly: I parked at Crawley station. Paid by phone. The phone gave the option of "pay for 1 day, pay for 2 days etc" I knew I would be there for less than 24 hours and therefore chose 1 day. I assumed 1 day meant 24 hours. Nothing in their T&Cs to define day as 24 hours/ calendar day/ hours of day light or anything else. Came back within 24 hours to a PCN. I sent the appeal (nominating myself as driver but not owner), got rejected and am now off to Popla. Have since read all the threads, I've put together the appeal below. Can you kindly suggest any tweaks that might need to be made. Also, if the appeal is likely to be successful, should I still wait until day 28 before sending it?

Thanks in advance.

Dear Sirs,

I refer to a PCN given by Indigo:

POPLA Ref: XXXXXXXXXXX
Indigo PCN Ref: XXXXXXXXXXXXXXXX

I believe the PCN was issued wrongly and illegally for the following reasons:

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.


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 and indeed within 5 minutes of parking the vehicle.

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''.

As described in 5 below, the appropriate charge was paid in good faith as viewed by a reasonable person 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 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. 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 in the car park. I made a special visit to the car park to ascertain the positioning and quality of the sign. The sign to which Indigo refers is positioned at an unreasonable height (evidence attached). I am 6’2” tall, much taller than the UK national average height and even the BOTTOM of the sign is more than six inches taller than me. For me to read the sign at eye level Indigo would need to provide safe and appropriate step access to reach their sign and they have failed to do so. Indeed, as clearly shown in Indigo’s own evidence, the bottom of the sign is higher than the security fencing erected by the TOC to keep trespassers from the railway. No consumer can be expected to enter into a contract that they are forced to read at ceiling height. The size, positioning, size of font and colours used make it impossible to read and therefore invalidates its use in any argument about a contract.

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 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 sign is the only access point for this information.

6. Full and correct payment made

I used the pay-by-phone facility to correctly pay £4.90 + booking fee. I knew that I would be parking for less than 24 hours and therefore a “one-day” ticket (as described by the options on the pay-by-phone system) was the correct amount. My bank has confirmed that the payment did indeed go through at 14.31 (proof attached) When Indigo issued a ticket at 12.19 the following day there was still more than 2 hours of paid-for time outstanding. Indigo may argue that there are different definitions of how long “a day” is.

The Oxford English Dictionary has several definitions but the first says:

“day, noun; Each of the twenty-four-hour periods….”

Timeanddate.com, the world’s most visited website devoted to time defines a day as:

“Modern timekeeping defines a day as the sum of 24 hours”

Wikipedia defines a day as:

“A day is a unit of time. In common usage, it is either an interval equal to 24 hours[1] or daytime”

This clearly supports my case that a reasonable person would be entirely justified in believing that a day is equal to 24 hours. If Indigo wishes in future to define a “day” in some different way, it should to so clearly and with no ambiguity. At the time of the PCN there was no definition of “day” either on the inadequate signs or on the pay-by-phone facility.

6. Faulty pay-by-phone facility

The pay-by-phone facility cut out abruptly during the call after processing my payment. I was therefore given no further terms and conditions (if indeed there were any others) by phone and had to rely entirely on Indigo’s inadequate and ambiguous physical signage. Indigo chose to ignore this during my appeal. I would therefore demand that Indigo provides an engineer’s report as to the condition and servicing of their pay-by-phone facility, a full transcript of the facility and a log of calls made on the day that the PCN was issued.

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.

Fruitcake

We don't normally recommend giving away the driver's identity, but in your case I believe it is necessary as you are able to give detailed information about 'phone payments etcetera hat the owner migh not be able to.

There is no need to wait. If the more experienced reguars give the green light, then bung it in.

It looks good to me, but I am not an expert.

My only comment really is that I think that as you are talking civil or contract law, the word "illegally" is not appropriate.

stoxman

Thank you. Would unlawful be a better word than illegal? I always took them to be synonyms but unlawful might be more appropriate in the case of civil law.

Coupon-mad

Yes, 'unlawful' is better. That appeal looks very good. Upload it under 'OTHER' to POPLA.

stoxman

Thank you Coupon.

Just out of interest, why is the use of "Other" recommended? I know that the regulars here have a very good reason for every step in this journey. Why is Other better than PCN/ Appeal/ Ref # or something else?

Best

A

Coupon-mad

Why is Other better than PCN/ Appeal/ Ref #

I'm not talking about the heading - that must have the POPLA number. I mean upload it under the choice of appeal reason that POPLA call 'OTHER'.

Have a look at the choices POPLA give you when you log in to appeal! Of course a keeper is not going to tick the other BPA-fed disingenuous rubbish headings like: 'I didn't see the signs' etc. Tick 'OTHER' to avoid choosing one of the BPA ''look, it was me, I was the driver and I didn't look at the signs'' traps that they appeared to have *kindly* and *helpfully* written to steer the new POPLA service in late 2015.

How very kind of the BPA to help POPLA...(grrrr...CM feels like swearing).

stoxman

Thanks Coupon. I'm starting the submission now. Popla (who are meant to be independent) say that "Other" is likely to be less successful. Quite a lot of my evidence (improper signs, paid for 24 hours and didn't get 24 hours parking etc) would suggest ticking the box I Was Not Improperly Parked. In doing so, does that mean they automatically disregard all the bye-law, ownership etc points?

Redx

see post #3 here

https://forums.moneysavingexpert.com/discussion/5682490

frankly , we dont care what they say on their site or what their boxes say

choose other and upload as a pdf , its what we tell EVERYBODY , regardless

at the moment , even POPLA havent a clue what to do with bylaw appeals, which is why they are placing them on hold pending a decision by the DoT

Coupon-mad

Popla (who are meant to be independent) say that "Other" is likely to be less successful

Riiiight...and who do you think wrote that, and when?! That appeared on the new POPLA webpage in October 2015, BEFORE they had ever received a single appeal, let alone made any decisions. They made it up, or believed what they were fed by their paymasters the BPA.

Also, even if they now have figures about appeals submitted under 'other' (they've never published them, if so, therefore I call BS on it!) remember that people who choose 'other' include clueless appellants who are not forum-assisted. Ask me how many times WE lose, here, when people appeal under 'other' and I would say maybe one in a hundred, if that.

would suggest ticking the box I Was Not Improperly Parked.

In your case, you can, because you've already shot several toes off by saying who the driver was. Not good, not what we would have advised. You can see why we don't tell the majority, the people who appeal properly from the outset, as keeper, to say 'I was not improperly parked' - DOH!

Redx

and this is why the driver must never be revealed

https://forums.moneysavingexpert.com/discussion/5662252

blabbing is expensive, if people are scared into paying, rather than fronting it out , preferably by not hastily blowing their toes off by blabbing about the driver by using the words "ME , MYSELF and I"

YES , ITS A BUGBEAR OF MINE , WHY PEOPLE HASTILY BLAB AND THINK THEY HAVE TO "EXPLAIN THEMSELVES"

I hope you win on another legal point, I really do

Guys_Dad

"The phone gave the option of "pay for 1 day, pay for 2 days etc" I knew I would be there for less than 24 hours and therefore chose 1 day. I assumed 1 day meant 24 hours."


That is such a weak argument that it could do your appeal more harm than good. If you bought a cheap day return on the train at 7.00 p.m., do you think it would allow you to return on the next day as long as you were back before 6.59? Of course not.

I agree that 24 hours would give you 24 hours, but you have said in post 1 it was 1 day.