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Indigo appeal refused - wrong date parking ticket displayed
bcyt
Posts: 1 Newbie
Hi,
I had purchased a parking ticket from a train station counter, however I had displayed a ticket with a wrong date on my windscreen.
I then received a penalty notice on my windscreen and appealed to Indigo within days notified them I was the driver.
I would appreciate if you could review my appeal letter to POPLA and ITAL below and advise if anything needs to be altered.
Appeal re POPLA Code: [XXX] v Indigo Park Solutions UK Ltd
Vehicle Registration: XXX
POPLA ref: XXX
My appeal to the operator – Indigo Park Solutions UK Ltd – was submitted on 22nd November 2018 but subsequently rejected by a letter dated 24th December 2018 . I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:
1. Signs
2. No Evidence of Landowner Authority - the operator is put to strict
proof of full compliance with the BPA Code of Practice
3. Vehicle Images contained in PCN: BPA Code of Practice –
non-compliance
4. No Planning Permission from Central Bedfordshire Council for
Advertising Consent for signage
5. Signage does not meet the Consumer Contracts Regulations 2013
6. No Breach of Bylaw
7. Misrepresentation of Authority
1. Signs
BPA’s Code of Practice (18.2) states:
“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and
conditions they must be aware of.”
BPA’s Code of Practice (18.3) states:
“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”
BPA’s Code of Practice (Appendix
states:
“If you think there are other circumstances where it is impractical or undesirable to have an entrance sign, you must tell us in advance and get our approval to amend the sign or not have one.”
“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times.”
Figure 1 below shows a map of the X Station Road Parking. Point A is the entrance and exit of the X Station Road Parking.
Figure1: Map of the X Station Approach Parking
Figure 2 shows the view at the entrance/exit A. It shows that:
There is no ground boundary marking indicating the start and end of the venue. There is low lighting level on the signage, the closest public street light is on Station Road.
As a result, it is impossible for anyone to conclude that a controlled area is entered.
All items above indicate the contravention of BPA’s Code of Practice (18.2) which states: “you must also have a standard form of entrance sign at the entrance to the parking area.” and (18.3): “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” and (Appendix: ““Managed by” is required“ to be included on the entrance sign and “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.”
Figure 2: Entrance/exit of the venue
In addition to the lack of entry signs, Indigo Park Solutions UK Ltd’s main car park sign (the only one in the car park displaying terms and conditions) is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read. It
clearly violates BPA’s Code of Practice (18.3) and appendix B.
The image in Figure 3 shows a close up of the main car park sign in similar low lighting level conditions as the time when the car was parked at dusk. It is unremarkable, small, not including the text ‘managed by’ and not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read before the action of parking and leaving the car. Notice the sign is high up in the pole which poses additional difficulty for anyone to read whilst driving.
Figure 3 terms and condition sign
It cannot be reasonably assumed that a driver drove past and could read a legible sign, observed one upon entrance to the car park, nor parked near one.
This case is more similar to the signage in POPLA decision 5960956830 on 02/06/16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The
appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''
Recently (September 2017) a not dissimilar POPLA appeal versus Euro Car Parks (car park: Kay Street, Bolton) was successful as the Assessor was not satisfied that adequate signage was placed throughout the site and therefore compliant with section 18.3 of the BPA Code of Practice.
Very recently (April 2018) here was a not dissimilar POPLA Appeal versus ParkingEye which was successful on the grounds that the assessor (Ashlea Forshaw) believed there was a clear lack of lighting and that the signs could not be clearly seen during the hours of darkness. Ashlea Forshaw wrote the following:
“Having assessed the operator's evidence of the signage displayed at the site, I am not satisfied that this proves that the signs are displayed clearly in the dark.” “The ANPR photos clearly demonstrate that the appellant has entered the site during the hours of darkness. Therefore, I would expect the operator to provide sufficient evidence proving that there is lighting at the site and that the signs can be clearly seen during the hours of darkness. On this occasion, the operator has failed to demonstrate this and so, I cannot conclude that a contract was formed. Therefore, this appeal is allowed and the other grounds for appeal do not need
any further consideration.”
From the evidence shown above (Figure 3), the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put Indigo Park Solutions UK Ltd to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.
The letters seem to be no larger than .40 font size going by this guide:
Website
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
Signazone sign letter height visibility chart
''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''
...and the same chart is reproduced here:
thesignchef sizing guide
'When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor
wall''.
''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''
When the driver arrived at the car park it was impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located (higher than the top of vehicle (not at eye level), on the passenger side of the vehicle, not visible from drivers side), invisible at dusk (lit by borrowed light from adjacent street light only, too high to be lit by virtue of reflecting any vehicle headlights, particularly from a moving vehicle), and the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this Charge.
Bearing all the evidence above in mind, there was categorically no contract established between the driver and Indigo Park Solutions UK Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.
There were no 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 Park Solutions UK Ltd or 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:
Whatdotheyknow enforcement of railway byelaw 14
Any definition of “authorised person” is not relevant in this context. There is no mention 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 Park Solutions UK Ltd 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 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 Park Solutions UK Ltd submit it is incorrect. Indigo Park Solutions UK Ltd 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 Park Solutions UK Ltd (as a contractual charge dressed up to impersonate a penalty would).
2. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As this operator does not have proprietary interest in the land, I require that they produce an unredacted 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 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).
Section 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:
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.
7.3 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.
3. Vehicle Images contained in PCN: BPA Code of
Practice – non-compliance
The BPA Code of Practice point 20.5 stipulates that:
"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."
There are no time and date stamp inserted into any images taken by the parking attendant. As a result, these images cannot be used as the confirmation of the incident and Indigo Park Solutions UK Ltd claim was unauthorized.
I require Indigo Park Solutions UK Ltd to produce evidence of the original images containing the required date and time stamp and images showing the car is parked in the date stated in the parking notice.
4. No Planning Permission from Central Bedfordshire Council for Advertising Consent for signage
A search in Central Bedfordshire’s planning database does not show any planning permission for any advertising consent for signage exceeding 0.3m2.
UK government guidance on advertisement requires:
“If a proposed advertisement does not fall into one of the Classes in Schedule 1 or Schedule 3 to the Regulations, consent must be applied for and obtained from the local planning authority (referred to as express consent in the Regulations). Express consent is also required to display an advertisement that does not comply with the specific conditions and limitations on the class that the advertisement would otherwise have consent under.
It is criminal offence to display an advertisement without consent.”
This clearly proves Indigo Park Solutions UK Ltd is/has been seeking to enforce Terms & Conditions displayed on illegally erected signage for which no planning application had been made.
I request Indigo Park Solutions UK Ltd provides evidence that the correct Planning Application were submitted (and approved) in relation to the Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates (22nd November 2018).
5. Signage does not meet the Consumer Contracts Regulations 2013
The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.
The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Claimant’s notice fails to comply with various clauses of Schedule 2, as follows:
2(o) – Requirement to provide information about the right to cancel, or to state that there is no right to cancel. This is not stated on the signage.
2(r) – Requirement to provide information about Codes of Conduct. This does not appear on the signage.
2(x) – Requirement for access to an Alternative Dispute Resolution mechanism. Not indicated by the signage.]
Due to these significant breaches of the Regulations, it is submitted that I cannot be held contractually liable, according to the wording of the Regulations at 13 (1) “Before the consumer is bound by a distance contract, the trader must …”
6. No Breach of Byelaw
If Indigo Park Solutions UK Ltd attempt to hold me liable under byelaws, then any breach of byelaws is denied as because according to the Penalty Notice, ‘Breach Code 1 - Failure to display a valid ticket or voucher’ is not part of the bylaw, also a parking ticket was purchased for the period parked (but not displayed) and submitted online as evidence for the first appeal.
Railway Byelaw 14 (3) states that:
''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''.
7. Misrepresentation of Authority
Indigo Park Solutions UK Ltd cannot refer a 'contractual charge' as a Penalty Notice. This impersonates a level of authority a private parking charge does not possess. This means that this 'Notice’ 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’.”
I had purchased a parking ticket from a train station counter, however I had displayed a ticket with a wrong date on my windscreen.
I then received a penalty notice on my windscreen and appealed to Indigo within days notified them I was the driver.
I would appreciate if you could review my appeal letter to POPLA and ITAL below and advise if anything needs to be altered.
Appeal re POPLA Code: [XXX] v Indigo Park Solutions UK Ltd
Vehicle Registration: XXX
POPLA ref: XXX
My appeal to the operator – Indigo Park Solutions UK Ltd – was submitted on 22nd November 2018 but subsequently rejected by a letter dated 24th December 2018 . I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:
1. Signs
2. No Evidence of Landowner Authority - the operator is put to strict
proof of full compliance with the BPA Code of Practice
3. Vehicle Images contained in PCN: BPA Code of Practice –
non-compliance
4. No Planning Permission from Central Bedfordshire Council for
Advertising Consent for signage
5. Signage does not meet the Consumer Contracts Regulations 2013
6. No Breach of Bylaw
7. Misrepresentation of Authority
1. Signs
BPA’s Code of Practice (18.2) states:
“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and
conditions they must be aware of.”
BPA’s Code of Practice (18.3) states:
“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”
BPA’s Code of Practice (Appendix
states:“If you think there are other circumstances where it is impractical or undesirable to have an entrance sign, you must tell us in advance and get our approval to amend the sign or not have one.”
“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times.”
Figure 1 below shows a map of the X Station Road Parking. Point A is the entrance and exit of the X Station Road Parking.
Figure1: Map of the X Station Approach Parking
Figure 2 shows the view at the entrance/exit A. It shows that:
There is no ground boundary marking indicating the start and end of the venue. There is low lighting level on the signage, the closest public street light is on Station Road.
As a result, it is impossible for anyone to conclude that a controlled area is entered.
All items above indicate the contravention of BPA’s Code of Practice (18.2) which states: “you must also have a standard form of entrance sign at the entrance to the parking area.” and (18.3): “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” and (Appendix
: ““Managed by” is required“ to be included on the entrance sign and “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.”Figure 2: Entrance/exit of the venue
In addition to the lack of entry signs, Indigo Park Solutions UK Ltd’s main car park sign (the only one in the car park displaying terms and conditions) is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read. It
clearly violates BPA’s Code of Practice (18.3) and appendix B.
The image in Figure 3 shows a close up of the main car park sign in similar low lighting level conditions as the time when the car was parked at dusk. It is unremarkable, small, not including the text ‘managed by’ and not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read before the action of parking and leaving the car. Notice the sign is high up in the pole which poses additional difficulty for anyone to read whilst driving.
Figure 3 terms and condition sign
It cannot be reasonably assumed that a driver drove past and could read a legible sign, observed one upon entrance to the car park, nor parked near one.
This case is more similar to the signage in POPLA decision 5960956830 on 02/06/16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The
appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''
Recently (September 2017) a not dissimilar POPLA appeal versus Euro Car Parks (car park: Kay Street, Bolton) was successful as the Assessor was not satisfied that adequate signage was placed throughout the site and therefore compliant with section 18.3 of the BPA Code of Practice.
Very recently (April 2018) here was a not dissimilar POPLA Appeal versus ParkingEye which was successful on the grounds that the assessor (Ashlea Forshaw) believed there was a clear lack of lighting and that the signs could not be clearly seen during the hours of darkness. Ashlea Forshaw wrote the following:
“Having assessed the operator's evidence of the signage displayed at the site, I am not satisfied that this proves that the signs are displayed clearly in the dark.” “The ANPR photos clearly demonstrate that the appellant has entered the site during the hours of darkness. Therefore, I would expect the operator to provide sufficient evidence proving that there is lighting at the site and that the signs can be clearly seen during the hours of darkness. On this occasion, the operator has failed to demonstrate this and so, I cannot conclude that a contract was formed. Therefore, this appeal is allowed and the other grounds for appeal do not need
any further consideration.”
From the evidence shown above (Figure 3), the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put Indigo Park Solutions UK Ltd to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.
The letters seem to be no larger than .40 font size going by this guide:
Website
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
Signazone sign letter height visibility chart
''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''
...and the same chart is reproduced here:
thesignchef sizing guide
'When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor
wall''.
''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''
When the driver arrived at the car park it was impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located (higher than the top of vehicle (not at eye level), on the passenger side of the vehicle, not visible from drivers side), invisible at dusk (lit by borrowed light from adjacent street light only, too high to be lit by virtue of reflecting any vehicle headlights, particularly from a moving vehicle), and the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this Charge.
Bearing all the evidence above in mind, there was categorically no contract established between the driver and Indigo Park Solutions UK Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.
There were no 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 Park Solutions UK Ltd or 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:
Whatdotheyknow enforcement of railway byelaw 14
Any definition of “authorised person” is not relevant in this context. There is no mention 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 Park Solutions UK Ltd 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 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 Park Solutions UK Ltd submit it is incorrect. Indigo Park Solutions UK Ltd 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 Park Solutions UK Ltd (as a contractual charge dressed up to impersonate a penalty would).
2. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As this operator does not have proprietary interest in the land, I require that they produce an unredacted 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 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).
Section 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:
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.
7.3 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.
3. Vehicle Images contained in PCN: BPA Code of
Practice – non-compliance
The BPA Code of Practice point 20.5 stipulates that:
"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."
There are no time and date stamp inserted into any images taken by the parking attendant. As a result, these images cannot be used as the confirmation of the incident and Indigo Park Solutions UK Ltd claim was unauthorized.
I require Indigo Park Solutions UK Ltd to produce evidence of the original images containing the required date and time stamp and images showing the car is parked in the date stated in the parking notice.
4. No Planning Permission from Central Bedfordshire Council for Advertising Consent for signage
A search in Central Bedfordshire’s planning database does not show any planning permission for any advertising consent for signage exceeding 0.3m2.
UK government guidance on advertisement requires:
“If a proposed advertisement does not fall into one of the Classes in Schedule 1 or Schedule 3 to the Regulations, consent must be applied for and obtained from the local planning authority (referred to as express consent in the Regulations). Express consent is also required to display an advertisement that does not comply with the specific conditions and limitations on the class that the advertisement would otherwise have consent under.
It is criminal offence to display an advertisement without consent.”
This clearly proves Indigo Park Solutions UK Ltd is/has been seeking to enforce Terms & Conditions displayed on illegally erected signage for which no planning application had been made.
I request Indigo Park Solutions UK Ltd provides evidence that the correct Planning Application were submitted (and approved) in relation to the Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates (22nd November 2018).
5. Signage does not meet the Consumer Contracts Regulations 2013
The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.
The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Claimant’s notice fails to comply with various clauses of Schedule 2, as follows:
2(o) – Requirement to provide information about the right to cancel, or to state that there is no right to cancel. This is not stated on the signage.
2(r) – Requirement to provide information about Codes of Conduct. This does not appear on the signage.
2(x) – Requirement for access to an Alternative Dispute Resolution mechanism. Not indicated by the signage.]
Due to these significant breaches of the Regulations, it is submitted that I cannot be held contractually liable, according to the wording of the Regulations at 13 (1) “Before the consumer is bound by a distance contract, the trader must …”
6. No Breach of Byelaw
If Indigo Park Solutions UK Ltd attempt to hold me liable under byelaws, then any breach of byelaws is denied as because according to the Penalty Notice, ‘Breach Code 1 - Failure to display a valid ticket or voucher’ is not part of the bylaw, also a parking ticket was purchased for the period parked (but not displayed) and submitted online as evidence for the first appeal.
Railway Byelaw 14 (3) states that:
''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''.
7. Misrepresentation of Authority
Indigo Park Solutions UK Ltd cannot refer a 'contractual charge' as a Penalty Notice. This impersonates a level of authority a private parking charge does not possess. This means that this 'Notice’ 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’.”
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Comments
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Slow down.
Currently, there are very good reasons not to appeal to ITAL.
Someone else will be along shortly with more detail.0 -
What a shame you gave the driver's identity. Never mind, that cannot now be helped.
You cannot appeal to PoPLA so forget that approach. You can with other BPA members but not with Indigo.
Personally I would not advise anyone to make an ITAL appeal. This is new ground for the regulars and we don't know how this will turn out, but it seems there may be a possibility that an ITAL appeal "could" result in a prosecution.
At the moment, Indigo cannot take you to court. The Train Company or landowner (possibly Network Rail) could, but Indigo can't pass your details to them without making a DPA/GDPR breach.
I suggest you wait to see what the more experienced regulars have to say.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
For a bit of background, try reading this recent thread:
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fail to display
yup according to ital its "this is covered primarily by byelaw 14 (2)(ii) and (3)."
however it isnt !!!
It could be covered by 14(2)(ii) but not 14(3) which is the failure to make payment
The offence, however, would still be described wrongly
It's leaving the vehicle otherwise than in accordance.....
Failure to display is the action that gave rise to the offence, not the offence itself (credit Redivi - pepipoo)
so you are fighting an appeal co funded by indigo that do not understand the laws
when you fill in ital appeal form , you will have to admit to being OWNER , and amonst other questions , full phone No and DOB ??? why
because ital are a prosecution service hired by train co,s , you give them info , it bypasses KODOE , you get court papers thru the post
you do nothing and it simply times out after 6 mths
read this for more info https://forums.moneysavingexpert.com/discussion/5947692/11-indigo-pcns
I can tell you now ANY appeals to indigo zzps or ital will fail0 -
Slow down.
Currently, there are very good reasons not to appeal to ITAL.
Someone else will be along shortly with more detail.
I say people should do, as they seem unprepared and Indigo lost one already on pepipoo by failing to show evidence in time.
And because the decision is NOT binding on motorists, as we know.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Coupon-mad wrote: »I say people should do, as they seem unprepared and Indigo lost one already on pepipoo by failing to show evidence in time.
And because the decision is NOT binding on motorists, as we know.
correct the APPEAL repeat APPEAL decision is not binding on the customer , however to fill the form in you then have to enter all your info inc your DOB
read this , its worse that the ipc appeal service having the golf club address
https://forums.moneysavingexpert.com/showpost.php?p=75321787&postcount=240 -
and in the OPs case ITAL have stated they believe that the failure to display a ticket comes under byelaw 14 (2)(ii) and (3)., so the appeal has already been answered0
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I see no reason not to appeal to ITAL. I can not see this making much difference as to whether they receive a summons in due course.0
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Parkingfines wrote: »I see no reason not to appeal to ITAL. I can not see this making much difference as to whether they receive a summons in due course.
you seem to be missing something , indigo cannot start court action , or due to DVLA KODOE rules hand info to the train co or there debt recovery team
IF the person fills the ital form in and hand there info to ITAL or its related companies , then it circumvents KODOE
so the difference is
no appeal = NO court action
appeal and hand your info to the prosecutor = court action
in all the time indigo have been pulling this scam noone has been to magistrates , however , indigo now have new owners , and will need to show there masters (train Cos) that they are still needed
ipto now , no appeal , time out at 6 mths , why change from this ? indigo cannot do anything apart from send bog roll0
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