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

nosferatu1001

Any reason you di not include "not relevant land" as a separate reason there can be no possible Keeper liability?

Coupon-mad

nosferatu1001 wrote: »

Any reason you di not include "not relevant land" as a separate reason there can be no possible Keeper liability?

The driver has already been named so they can't argue no keeper liability - can possibly argue 'no owner liability'.

I want to scream every time I read from newbies they blabbed about the driver - WHY?! Eeek!!

Anyway what about the recently added point for Indigo appeals about the misleading description of the charge as a penalty, impersonating authority? This has been covered for a couple of months and I wrote it to be re-used in future, so let's not lose sight of that as a standard Indigo railway location appeal point. I believe Indigo railway cases can be won on that point; it's in the Lewes station thread I think, easy to search for.

BourneVale99

Thanks Coupon-mad, I have added a couple more points including the impersonating authority point from the Lewes Station post, and an extra point about Valid Payment Made. I will post the latest version now, and if it's OK, will send it of tomorrow, deadline day.

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

The above £100 Penalty Notice 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, for a Silver Ford Mondeo MJ05EOA 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 Indigo 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
6. Valid Payment was made


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).

Indigo 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’.

The PCN was described as, and purported to be a 'Penalty Notice' and this impersonates a level of authority a private parking charge does not have. This means that this 'PCN' was not properly described in terms of status and authority, and thus not properly given.!

Use of the misleading word 'penalty' is a serious breach of the BPA Code of Practice:

14 Misrepresentation of authority

14.1 You must give clear information to the public about what
parking activities are allowed and what is unauthorised.
You must not misrepresent to the public that your
parking control and enforcement work is carried out
under the statutory powers of the police or any other
public authority. You will be breaching the Code if you
suggest to the public that you are providing parking
enforcement under statutory authority.

14.2 You must not use terms which imply that parking is
being managed, controlled and enforced under statutory
authority. This includes using terms such as ‘fine’, ‘penalty’
or ‘penalty charge notice’.

14.3 The abbreviation ‘PCN’ is also used to mean a ‘penalty
charge notice’ in the regulated environment. Unless
you have previously defined a PCN as a ‘parking charge
notice’ on your signs and notices, you must avoid using
the term ‘PCN’ to avoid confusing drivers about the
nature of your parking enforcement.


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 electronic 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.!

6. Valid Payment was made
As the keeper of the vehicle, a Silver Ford Mondeo MJ05 EOA, I refute any argument by Indigo that payment was not made, received or validated. A valid cashless ticket session was purchased in accordance with the refereenced requirements under Byelaw 14, and I submit the email confirmation of payment for parking sent by Indigo, and a bank statement showing that the relevant payment was paid out to INDIGO PARK.

“You must purchase (and display) a valid ticket or permit and/or purchase a valid cashless parking session covering the duration of your stay”

On my interpretation of this term,
“Cashless” parking does not require the ticket to be displayed If this is not the case then the term,as it is worded, has ambiguity in its meaning and as previously stated:- It is trite law that anyambiguity in wording must be interpreted in the way that most favours a consumer; the 'most favourable' legal interpretationof course meaning that the PCN must be cancelled.


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.



Yours Faithfully,




(Supporting Evidence: See Below







Supporting Evidence: (Bank Statement, Email Receipt for Payment by Indigo App, Penalty Notice, Signage photos):

BourneVale99

I have now received the evidence pack from Indigo, which only has a brief reason at the top - as copied:

Vehicle was issued with a PN at the Hayes Train Station Car Park for failing to
display a valid ticket.
The terms and conditions of the car park state that all vehicles must display a
valid parking ticket or have a valid E-ticket for the full duration of the stay. As
the Parking Attendant was unable to observe a valid ticket in the windscreen of
the vehicle and upon checking the registration on their PDA was unable to
locate a valid E-ticket, it has correctly been issued with a PN.
By entering the car park, the customer is agreeing to park in accordance with
the terms and conditions and it is the customer's responsibility to ensure they
observe the terms and conditions before leaving their vehicle in the car park.
These terms and conditions were displayed throughout the car park.
It is appreciated that Mrs XXX purchased a ticket through the Park Indigo App.
However this was valid for an incorrect vehicle registration. The vehicle
registration on the ticket reads MJ05 whereas vehicle MJ05EOA was parked. As
no valid ticket could be found against the vehicle registration Mrs XXX had
parked, she breached the terms and conditions of the car park.

I understand I now have the opportunity to rebutt this evidence on the portal, should I just deal with this one point, or also refer back to the other five points I made in the Popla appeal, which Indigo have made no mention of?
Also, the letter of authority from the train operator to Indigo includes a 'site' list, which makes no mention of the Hayes Bromley BR station car park - is this relevant? Thank you.

Coupon-mad

the letter of authority from the train operator to Indigo includes a 'site' list, which makes no mention of the Hayes Bromley BR station car park - is this relevant?

Yes, state that first. And also mention if the 'authority' states no expiry date because POPLA seem to like that point.

Make your comments very brief bullet points, or the Assessors don't seem to read them, if they look like a complete new appeal!

nosferatu1001

Yes, do as above
If they have not commented on your appeal points, they arew deemed to have accepted them as fact. So you state to POPLA that a, b, c, d were accepted by the operator as being true, therefore on any one of them the appeal should be upheld.

Coupon-mad

Here's an example of a short 'comments on the POPLA evidence' set of bullet-points:

https://forums.moneysavingexpert.com/discussion/comment/73110151#Comment_73110151

That's about enough for the Assessor to need to read, after all the appeal already has everything.

BourneVale99

Just to update the Forum, it is now over a year since the PCN was issued and nothing has been heard back from POPLA!

Wooooo!

I take it this means nothing ever will be heard.....?

Thank you to everyone who posts on this Forum, your help is invaluable!

Le_Kirk

If it is a bye-laws case, my understanding is that it times out after 6 months. Check out other Indigo and bye-law threads.