Railway Property - Notice to Owner

jjyork

Hi all. I've studied this forum, including the newbies thread, quite thoroughly. I may have got it wrong, but I have tried to understand...

Driver parked at a railway station car park which was managed by APCOA, booked a day ticket on the APCOA app. They had every intention to pay the correct, full fare, made an innocent mistake, got the timings wrong. They didn't receive a ticket on the windscreen but received a "Notice to Owner" letter from the train operator (not APCOA) 21 days later. They state the vehicle was "parked on Railway Assets (Railway Property) in contravention of the Railway Byelaws" - £50 "fine" payable within 28 days.

Sent a complaint email to the TOC's disputes/appeals (what I thought was a good combination of the blue template and a successful complaint):

I dispute your 'parking notice', as the keeper of the vehicle. I deny any liability or contractual agreement.

There will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require an explanation of the allegation and your evidence. You must include a close up actual photograph of the sign you contend was at the location on the material date as well as your images of the vehicle.

Furthermore, the car park at <railway station> appears to be not relevant land as defined by paragraph 3 of Schedule 4 of The Protection Of Freedoms Act 2012 (‘POFA’), being subject to byelaws. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper. Even if it were not subject to byelaws, you have failed to comply with the requirements of Schedule 4 of POFA namely, but not limited to, failing to notify the keeper within 14 days of the alleged breach (para 9(5) of POFA and para 21.6 of the BPA Code of Conduct). Consequently, you are unable to rely on keeper liability to enforce this charge.

As only the driver can be liable for any charges (for the reasons outlined above) and you are unable to confirm their identity, I expect you to immediately cancel the ‘parking charge’ and inform me in writing that you have done so. If, however, you reject this appeal, then in accordance with the BPA Code of Conduct, please ensure that you enclose all the required information (including the necessary ‘POPLA’ code) so that I may immediately refer this matter (and any further issues that I may subsequently raise) for their adjudication.

They replied promptly, suggesting I had indeed got it wrong:

Unfortunately you are quoting legislation that does not apply. POFA is not the governing legislation for <railway station> car park. Our car parks are operated under Section 14 of the Railway Byelaws (Made under section 219 of the Transport Act 2000 by the Strategic Rail Authority and confirmed under schedule 20 of the Transport Act 2000 by the Secretary of State for Transport on 22 June 2005).
 
You should note that, unlike POFA, parking under Railway Byelaws is a criminal offence and we prosecute cases in the Magistrates Court. This is not a Civil matter.
 
You should also note that, under Section 14.4.1, it is the registered owner that is liable and not the driver. Your refusal to provide the driver details is, therefore, not relevant.
 
As you have not provided any evidence that negates your legal liability in this matter, your appeal is denied and the charges remain outstanding.

I'd be really grateful for any advice.

Thank you.

Gr1pr

Which TOC , which station. ?

You may need to try asking over on the ftla parking forum if it is a Penalty notice from a TOC using bylaws 

jjyork

Thanks for reply.

TP Express, Northallerton.

I thought from the FAQs that the FTLA was more for Council stuff, rather than TOCs?

Gr1pr

jjyork said:

Thanks for reply.

TP Express, Northallerton.

I thought from the FAQs that the FTLA was more for Council stuff, rather than TOCs?

TRUE, but as your thread is a fairly rare Penalty charge by a TOC using bylaws, and possibly magistrates court, then it doesn't fit in with the mainly private sector PCNs on here, as you found out in the reply by Trans Pennine as the TOC 

You need specialist advice from somebody who understands that particular topic, most TOCS don't use this method, but TP do because I have seen a few previously on pepipoo forum,  hence why I mentioned the newer ftla forum, but its your choice to make.  Most people on here won't understand the topic never mind be experts about it, I know I'm not, but I have read half a dozen in the last decade or so , usually TP ones

Fruitcake

Byelaws state that the owner "may" be liable. 

There is no such thing as a registered owner.

There is no mention of a vehicle keeper in railway byelaws, therefore the keeper cannot be held liable, and there can be no assumption that the keeper is the owner. Indeed, V5Cs all state that "This document is not proof of ownership."

Section 24 of Railway Byelaws states,

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

Were there signs (either APCOA or railway asset owner) where the vehicle was parked stating that failure to pay the parking fee is a breach of byelaws?
You should get photos of the site and signage. APCOA signs at railway stations are generally long-winded and cluttered. 

jjyork

Thanks @Gr1pr .

Thanks @F@Fruitcake. So should I just continue to appeal the PCN on that basis? Are they likely to continue to pursue this? I'm just wondering what to expect from them.

Gr1pr

I don't think that you can appeal any further, UNLESS they offered a secondary appeal or tribunal option ?

If its not paid or cancelled, you should probably expect a summons to magistrates court, within 6 months of the incident date, a loss there could be a hefty fine ?

I think that APCOA are contracted for taking the parking fees but its the TOC that enforces breaches of the bylaws themselves ( its not the usual system as seen elsewhere. )

Pepipoo used to allow the TOC ones in the private parking forum, but I just checked the ftla parking forum and couldn't see the equivalent, or any forum there that mentions them, just council, Dart, TfL etc , but they may allow yours to be posted. ? Could be the first one there. ?

Fruitcake

jjyork said:

Thanks @Gr1pr .

Thanks @F@Fruitcake. So should I just continue to appeal the PCN on that basis? Are they likely to continue to pursue this? I'm just wondering what to expect from them.

Does the TOC offer ADR/second stage appeal process? 

Unless you can show us what the car park signs say, whether there is a further appeal process, or what the complaints procedure involves if there isn't, I'm not sure what further advice we can offer.

As for whether they will pursue this to the Magistrates' Court within 6 months (it times out after that), it comes down to, how long is a piece of string.

jjyork

They do say they will "not enter into multiple appeal processes". I'll have a look at PePiPoo but I have a feeling I might just have to pay it (I'm pretty risk averse in terms of this going beyond initial tried and tested appeals, etc).

Just seen Fruitcake's update to their previous post. I don't have photos of the APCOA signs unfortunately and it's not easy for me to get there.

Gr1pr

Pepipoo has been down for months, the way back machine might have information from the old pepipoo forum , so maybe try the current rail UK users forum, seen a few TP on there , not seen any secondary appeal options or tribunal ect , I don't think that its an option,  IMHO  mags court is the next option if it remains unpaid 

A loss in magistrates court appears to be a fine of up to £1000 or 3 months imprisonment, so a possible criminal record, although I expect that it would be a hefty fine if it got that far and if you lost 

Coupon-mad

Gr1pr said:

jjyork said:

Thanks for reply.

TP Express, Northallerton.

I thought from the FAQs that the FTLA was more for Council stuff, rather than TOCs?

TRUE, but as your thread is a fairly rare Penalty charge by a TOC using bylaws, and possibly magistrates court, then it doesn't fit in with the mainly private sector PCNs on here, as you found out in the reply by Trans Pennine as the TOC 

You need specialist advice from somebody who understands that particular topic, most TOCS don't use this method, but TP do because I have seen a few previously on pepipoo forum,  hence why I mentioned the newer ftla forum, but its your choice to make.  Most people on here won't understand the topic never mind be experts about it, I know I'm not, but I have read half a dozen in the last decade or so , usually TP ones

I agree.

Ask about it on FTLA.