paid by Indigo phone app but missed off end of car reg, any chance with Popla appeal?

BourneVale99

Hi, I have looked through the threads but can't find anyone with exactly the same circumstances as ours. We paid for parking at Hayes (Kent) BR station using the Indigo phone app for the first time, but received a penalty notice ( Code 1 - failing to display a valid ticket or voucher). It turns out that I did not enter the whole of the car Reg number on the App, just the first four characters. We have an email receipt for payment that states that parking was paid for a Silver Ford Mondeo reg no MJ05 though. Would there be any point in appealing to Popla on the grounds of making a mistake with the App, no intention to deceive, law-abiding citizen etc etc?

Umkomaas

You need to appeal to Indigo first, using the blue text template for BPA operators from the NEWBIES FAQ sticky, post #1. You will need a POPLA code (sent to you by Indigo with their rejection of your initial appeal) before you can appeal further to POPLA.

But you won't be telling either Indigo or POPLA that there was a failure to input all VRM digits. There are many other grounds to beat this, as you will learn on the journey on which you are now setting out.

Don't add to or take out anything from the initial appeal template - use it exactly as it is.

Coupon-mad

Would there be any point in appealing to Popla on the grounds of making a mistake with the App

Nope, absolutely NOT.

That would 100% lose, POPLA do not consider mitigating circumstances.

AT ALL. Only their version of the legality of the PCN, which is why you need to do it our way. And that's why you do not see it suggested on other threads, ever, to write a weak appeal about what happened, to POPLA. NO.

But what you must do at that stage is point out all the usual things we throw at Indigo, that approach still wins, plus the new point written recently for Indigo cases that they impersonate authority they do not have by calling it a penalty, like here in post #9:

https://forums.moneysavingexpert.com/discussion/5683402

But that person's POPLA appeal is hampered by the fact they admitted who was driving, and absolute NO-NO!

To save us typing, for your first appeal you can search & find other Indigo thread if you can't work out how to get around that issue, on the Indigo appeals page where it asks about the driver.

Done to death on other threads - obviously you do not fill it in blabbing who was driving.

fisherjim

BourneVale99 wrote: »

Hi, Would there be any point in appealing to Popla on the grounds of making a mistake with the App

This is unfortunately part of the design of the scam, people appeal to the PPC thinking they are reasonable people that accept mitigation and legitimate reasons, of course they should and that is the impression given, but that would not make them money!

The victim then thinks POPLA is there to effectively police these rejections for fairness and reiterate the same reasons, but that is not what they are there for.
POPLA only consider whether the law, such as it is, and the procedure for issuing the charge has been followed.

But of course this is not spelled out to you, why would they do that and reduce the revenue stream.

POPLA is also appointed on a contract by the same Club that the PPC belongs to and pays for, but that's another discussion.

Guys_Dad

Please clarify if your car is a silver Monde or if that is another vehicle.

BourneVale99

Thanks for all your replies. Yes, the Silver Ford Mondeo is our car, and unfortunately we appealed to Indigo naming her as the driver before we found this site! However, I have read all the appeals similar to ours based on incorrect VRM's on Railway Land and based a Popla Appeal closely on them, and will try and upload it for comments.

BourneVale99

Dear Sir/Madam,

POPLA Verification: 3912047212 re: INDIGO APPEAL

RE: RAILWAY BYELAW 14 Appeal

Penalty Notice: SE31020170705113234
Vehicle registration: MJ05EOA
Make: Ford Mondeo saloon
Colour: Silver

'Breach code 1: Failing to display a valid ticket or voucher, payment due £100

The above demand was received from Indigo in the form of a Penalty Notice affixed to the car windscreen, for failing to display a valid parking ticket at HAYES, Bromley, Kent, Southeastern Railways Station car park at 11:33 on 05/07/17.

I write to you as the registered keeper of the vehicle, registration: MJ05EOA
a silver Ford Mondeo saloon, and I wish to appeal the £100 Penalty Notice issued by Indigo.

The Penalty Notice was immediately appealed proving to them that payment for parking to the sum of £5.30 had actually been paid electronically before 0900 hours as part of a payment for two days parking (total £10:80p) via the Indigo phone App, but only a partial vehicle registration of MJ05 was recorded by their electronic system (photographic evidence of the Indigo email confirmation of payment of £10:80 for two days was submitted and is included with this appeal). No ticket needs to be displayed when paying by telephone App. The App was apparently suffering from technical faults and was indeed subsequently withdrawn and replaced by a new App the next week.

My appeal to Indigo was rejected on the 23/07/17 stating the reason that the parking attendant could not find the vehicle on his PDA, and they gave me POPLA code 3912047212.

In submitting my appeal against the Penalty Notice I offer the reasons below as evidence to show that I am not liable for the parking charge:

1. 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
2. No Breach of Byelaw
3. The Notice to Keeper is not compliant with the POFA 2012 – No Keeper Liability
4. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
5. No Evidence of Landowner Authority

1. 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.

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).

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).

2. No Breach of Byelaw

The Penalty Notice mentions 'This car park is regulated by the terms and conditions of parking displayed at the car park in accordance with Rail Byelaw 14.' Signage in the car park sates 'This car park is subject to Railway Byelaws. The requirements set out below relate to matters required or prohibited under BYELAW 14 or are lawful instructions for the use of the car park issued under that Byelaw.

There is no Railway byelaw known as: 'Breach code 1: Failing to display a valid ticket or voucher (including e-tickets)'. 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 far as 'appropriate charge at the appropriate time is concerned', I submit that an electroni parking ticket for the vehicle MJ05EOA valid on the date mentioned in the penalty notice had been purchased, and photographic evidence of the receipt was provided to Indigo when I first appealed. This bylaw is about NOT PAYING, and it is not disputed that the parking had been paid for and that there was no further fee to pay – hence no contravention of the byelaw has taken place.



3. The Notice to Keeper is not compliant with the POFA 2012 – No Keeper Liability

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle . (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.”

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. The alleged infringement occurred on 05/07/2017 and from my understanding the NTK was required to reach me by 31/08/2017. As this operator has failed to serve an NTK to date, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents have not been properly given.

Furthermore, Indigo’s declared position via their correspondence is based on 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.

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.

4. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability:

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

5. No Evidence of Landowner Authority

As this operator does not have proprietary interest in the land then I require that they produce an un-redacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.!

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the British Parking Association (BPA) Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:!

Section 7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
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.!


Conclusion:

That completes my case for appeal. I respectfully request that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

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.''



Yours Faithfully,




(Supporting Evidence: See Below)


Photos and scans included

Umkomaas

unfortunately we appealed to Indigo naming her as the driver before we found this site!

If you appealed to Indigo before finding this forum, and you first posted here on 25/07/17, you must be getting pretty close to your POPLA deadline?

Don't miss that, or you've got potential hassle for 6 years. When is the deadline?

Umkomaas

Just had a skim read through your draft appeal and you seem to have covered all the standard bases. Nothing has jumped out at me as being off piste.

You make the point well about the 'Not paying' element of the byelaw, which you have most certainly not breached.

Put a 'c' on your 'electroni'!

As far as 'appropriate charge at the appropriate time is concerned', I submit that an electroni parking ticket for the vehicle MJ05EOA valid on the date mentioned in the penalty notice had been purchased, and photographic evidence of the receipt was provided to Indigo when I first appealed. This bylaw is about NOT PAYING, and it is not disputed that the parking had been paid for and that there was no further fee to pay – hence no contravention of the byelaw has taken place.

BourneVale99

Thanks for the proof read, Umkomaas! Yes, I think my 28 days from receiving the rejection letter on 23/07 will be up this Saturday 19th. Hopefully it is now all ready to go!

Umkomaas

BourneVale99 wrote: »

Thanks for the proof read, Umkomaas! Yes, I think my 28 days from receiving the rejection letter on 23/07 will be up this Saturday 19th. Hopefully it is now all ready to go!

There's generally a couple of days available beyond the deadline, so could go electronically on Monday, if others are suggesting edits/addons that might take you close to Saturday. Emergency use only, hit the deadline where possible then you'll have no time-related issues.