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Indigo 14 day appeal refused - Ticket not displayed

[FONT=&quot]Hi,

I've read through post sand stickeis and believe I have found the correct POPLA dispute template, which I'll include below. I would appreciate if you could review and advise me if there's anything else that I can add or have missed?

In addition to all the standard sections of the template, I'm appealing on the basis that I had purchased a ticket from a machine that I was required to enter my vehicle registration number, neither the machine, ticket or nearby signage mentioned that the ticket had to be displayed, so I assumed it was not necessary to do so, otherwise why else would the registration need to be entered? ...I usually pay by phone and no ticket is displayed when that method is used.
[/FONT]
My 14 day appel to Indigo:-

Reason for Appeal: I have a valid permit †
Any Other Details:
I usually pay by phone but thought I'd save the 30 pence charge so opted for the machine instead. I assumed that as I had to enter my registration that there was no need to place the ticket in my car. The ticket itself make no mention of having to do this either. As I've obviously paid and not attempted to park without payment I assume there will be no issue with this appeal being approved. May I also suggest you change the ticket so it actually states the requirement for it to be displayed.
Do you have any evidence?: Yes - (ticket scans supplied)

Were you the driver?: Yes


I wasn't aware of the not admitting I was the driver bit so that point is too late to do anything about, so here's my POPLA appeal so far:-



[FONT=&quot]Dear Sir/Madam,
Parking Charge Notice:

I am appealing a parking charge notice (PCN) from Indigo Parking Solutions at Lewes Station Car Park. This appeal is placed on the following grounds:

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. Failure to establish owner
4. The location in question is not relevant land
5. No Evidence of Landowner Authority
6. Signage
7. 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.

As persuasive evidence, see the Freedom of Information Request here:

(link removed to be able to post)

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).

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 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 ‘PN’ 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 cark park is regulated by the terms and conditions of parking displayed at the car park in accordance with Rail Byelaw 14' (See Document - PCN Scan)

There is no Railway byelaw known as: 'Breach Code 01 - Parked without displaying a valid payment’. 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 a parking ticket valid on the date mentioned in the penalty notice had been purchased and photographic evidence of the steps taken to make payment was provided to Indigo when I first appealed. This bylaw is about NOT PAYING and it is not disputed that the driver had paid and had no further fee to pay – hence no contravention of the byelaw has taken place.

3. Failure to establish owner
Sites designated as Railways by the Secretary of State are subject to statutory control in the form of byelaws. POFA 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050.

My understanding is that the owner of the vehicle is liable for any penalty, if it applies, and the owner has not been identified. As such, I am able to appeal as keeper (going by the POFA 2012 definition) but cannot be held liable under any byelaw because the Train Operator would have recourse only to pursue the owner via the Magistrates Court and that has not occurred. This is a third party agent pursuing the day to day keeper.


4. The location in question is not relevant land (ref POPLA case Steve Macallan 6062356150).

The location in question is not 'relevant land' as defined by the Protection of Freedoms Act 2012, as it is owned by Govia Thameslink Railway and is subject to the Railway Byelaws. The Operator is not the owner of the land in question, and therefore does not provide any consideration which may form a contract with motorists. Any consideration, in the form of a parking space, is provided by the landowner, in this case Govia Thameslink Railway, and any liquidated damages for breach of contract would be owed to the landowner, not to the Operator. The Operator has provided no details showing their authority to exercise parking controls on railway land, nor provided contact details at the Govia Thameslink Railway to whom I can direct a complaint.

The British Parking Association’s (BPA) Code of Practice (CoP) states in section 7.1 “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.”

The Operator has not provided an unredacted copy of such authorization. In the event that proof of such authorization can be provided I challenge its validity should the date of commencement, termination date and validity of the signatories’ identity of the contract be unclear. The Operator has failed to comply with any such authorization by breaching BPA code of practice as identified under item’s 2, 5, 6 and 7. Furthermore the operator has omitted clear information about the process for complaints including a geographical address of the landowner.

5. No Evidence of Landowner Authority
Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. I do not believe that Indigo has landowner authority and, as such; the operator has not met the requirements of this section of the BPA Code of Practice.

Section 7.1 states “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

Section 7.3 states “The written authorisation must also set out:

a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d. who has the responsibility for putting up and maintaining signs

e. the definition of the services provided by each party to the agreement

Indigo are required to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. Any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority.

As Indigo do not have proprietary interest in the land, I demand that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract. I do not believe they have such authority.

Indigo has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

As a third party payment system is operational at this location, any landowner contract and supplementary site specific user manual, must also provide evidence that this company has a contract with the landowner permitting the following:
a) payments by this system
b) Indigo have a contractual agreement with the pay by phone company granting this consent for use at this location.
c) No DPA rights have been contravened as a consequence of using such a system
d) Full planning consent is in force for the signage at the location.

6. Signage

The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between Indigo and the driver. There was no offer, consideration or acceptance flowing between this Operator and the driver which could have created any contract for the driver to pay this extortionate sum over and above the correct tariff already paid.

Indigo state that the terms and conditions of parking are displayed at the entrance to the car park. I made a special visit to the car park to ascertain the positioning and quality of the sign. The sign at the entrance of carpark is difficult to notice as it is placed to the right of the entrance and covered with overgrown shrubbery (see photo 1 – car park sign). The size, positioning, size of font and colours used make it impossible to read without stopping and getting out of the car. Even then, the sign is not easily accessible. The car park is busy and having to dodge exiting cars to actually read the sign breaches the BPA code of practice.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about Indigo’s terms and conditions' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.


The third party telephone payment system (Connect Cashless Parking) does not communicate any terms and conditions. Therefore, if you pay for your parking by phone, there is nothing to clearly advise how any terms and conditions may be breached.

To be clear, there is nothing to communicate full contractual terms & conditions.

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.''

7. Valid payment was made
As the keeper of the vehicle, I refute any argument by Indigo that payment was not made, received or validated. [/FONT]

[FONT=&quot]I usually pay by phone but on this occasion opted for the machine instead as my phone had no charge. I couldn’t use the blue ticket machines as these were not working and so had to use the Southern Rail ticket machine (copy of tickets issued are attached).[/FONT]

[FONT=&quot]I assumed that as I had to enter my registration, that there was no need to place the ticket in my car, in the same way that as with payment by phone, no ticket is required to be displayed. [/FONT]

[FONT=&quot]Additionally, neither the ticket machines, or the ticket mention having to display any part in the vehicle.

That completes my case for appeal. I request that my appeal is upheld.

Sincerely, [/FONT]
«1345

Comments

  • Fruitcake
    Fruitcake Posts: 58,155
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    edited 22 July 2017 at 12:42PM
    You seem to have most things covered, but the template signage appeal point in post 3 of the NEWBIES is much longer and better than the one you have used. You will need to embed your own pics of signage, and any other signs such as the ones from the Beavis case rather than link them.

    If neither the signs or ticket require a motorist to display the ticket, and in any case there is no facility to display a physical ticket when paying by 'phone, then you could add Frustration of Contract as another appeal point.

    The 14 days you mention is irrelevant. All you are interested in is appealing within the 28 day appeal window both to the parking scammers and then to PoPLA.
    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • Coupon-mad
    Coupon-mad Posts: 130,634
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    Someone lost v Indigo the other day at POPLA. Please read the decision. The case was linked in POPLA Decisions by me, this week and we need to be sure other appellants avoid the pitfalls.

    Did you admit who was driving by giving driver details in the first appeal online?

    Was the PCN a 'Penalty' Charge Notice? Not 'Parking'?

    If so I think we need to start putting that as an appeal point at POPLA v Indigo railway PCNs, saying as a separate first point, that it is misleading and cannot be construed as a private parking charge under contract. A 'penalty' suggests the byelaws are supporting it, which they are not, and such ambiguity impersonates a level of authority the PCN does not have, is against the BPA CoP and means the PCN was not properly served.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • squidster69
    squidster69 Posts: 27 Forumite
    Hi, thanks for the feedback. I should clarify:-

    1) I did admit to being driver at 14 day appeal stage. - lesson learnt :(
    2) The ticket left on my screen states it is a Penalyt Notice.
    3) I had purchased a physical ticket from the Southern Railways ticket machine, the two other machines I assume operated by Indigo were not working. I had to enter my vehicle registration and assumed, that as with pay by phone the fact that a registration was provided, that it was not a requiremnet to physically display a ticket in my vehicle. Neither the ticket machine or tickets themselves made any mention that I had to do so.
    4) The signage next to the Indigo machines does mention "pay and display" it doesn't mention the £100 penalty though, only the one at entrance mentions that and in font of approx 10 mm, which is considerably less than 50% of recomended group 1 size of 50 mm. As that sign is only at the entrance it is physicall impossible to read it at a glance on entry, which is all the time you get with vehicles behind you, you don't get time to stop and read the bloody thing! ..I have pictures with ruler which can back this up.

    So penalty reason is Breach code 1 - Failing to display a valid ticket or voucher.

    Incidentally, the tickets that were spewed out by the machine are in fact the standard rail travel type tickets which on the reverse mention:-

    "Issued subject to the National Rail Conditions of Carriage. blah, blah... For more infromation about this ticket ask staff or go to nationalrail.co.uk/tickets."

    Not sure if this throws any addiytional legal argument that can be used? ...maybe they're not valid tickets, so I would not have been able to display anyway? ...longshot probably..
  • Redx
    Redx Posts: 38,084
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    INDIGO cannot enforce "penalty notices" , only parking charge notices

    see the comments in this INDIGO thread

    http://forums.moneysavingexpert.com/showthread.php?t=5682383

    shame you gave away the drivers details, too many people BLAB about this when "no comment" would be the way to go (ie:- appealing as KEEPER)

    if the signs say a ticket must be purchased and displayed (rather than just purchased) then signage is key

    what you do with RINGO or similar is not relevant if a ticket machine has been used , concentrate on this event , not what may happen at any other time
  • squidster69
    squidster69 Posts: 27 Forumite
    edited 23 July 2017 at 12:27PM
    Hi REDX thanks for the link to the recent thread. ...so is the main point of my appeal to be that Indigo can't enforce the PN? or about non display and signage etc? ...what does RINGO mean?

    I can PM a link to photos of signage and tickets etc if this helps?

    Do you think there much point in pursuing the line of display under this point?

    The byelaw is also worded differently and makes no mention of having to display a ticket:-
    (3) 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.

    In addition to this, as I actually paid by credit card, my payment was in effect cashless, so the (and display) requirement can be argued not to apply?
  • Fruitcake
    Fruitcake Posts: 58,155
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    Ringo is a pay by 'phone application.

    You can upload images to a web hosting site such as tinypic or photobucket then post the URL here, but change http to hxxp. Someone here will then convert it to a live link.

    Offering a method of payment where no physical ticket is produced and then requiring display of a ticket is a frustration of contract, and therefor is an unfair term.
    In other words, include it in your appeal along with the long signage template point from post 3 of the NEWBIES amongst others you will find there.

    That plus the byelaws point should see this off.
    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • squidster69
    squidster69 Posts: 27 Forumite
    Ah, so not a beetle then, which is pretty much all I got from google!! :D

    Pics in this one (both https):-

    dropbox.com/s/7jc6wrpnxq7zcu9/Signage%20at%20entrance%20etc.docx?dl=0

    and my current POPLA draft in this:-

    dropbox.com/s/4ryw2hqcza0welv/POPLA%20appeal%20letter.docx?dl=0

    I DID have a physical ticket, my mistake was assuming that as I entered my registration to get it, this would mean "it would be in the system" when they check my car on their PDA, so a displayed ticket would not be necessary.
  • Coupon-mad
    Coupon-mad Posts: 130,634
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    edited 23 July 2017 at 2:10PM
    Awww, it's at Lewes, very familiar, not a million miles away from me and I sometimes use that station to get to the Amex! :D

    I would remove your point #5 because 'not relevant land' does not help a driver, as you can see from that lost Indigo POPLA appeal in POPLA Decisions this week.

    I would also remove this from the end, because it says nothing useful and you WILL get to see their evidence:
    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.''


    Change your first numbered appeal point - you should not have copied '(assuming it was?!)' from my reply to that other poster! Here's a fuller appeal point as #1:


    1. Indigo cannot dress up a 'contractual charge' as a Penalty Charge Notice
    The PCN was described as, and purported to be a 'Penalty Charge 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.

    Purporting to have authority to issue a statutory 'penalty' is also a misleading business practice. It is trite law that any ambiguity in wording must be interpreted in the way that most favours a consumer; the 'most favourable' legal interpretation of course meaning that the PCN must be cancelled. The status of a 'penalty' charge notice is certainly ambiguous and misleading to the average driver, especially when issued on byelaws land.

    I contend that a 'PENALTY' cannot be upheld by POPLA as if it was a private parking charge with a completely different legal status, and nor can POPLA save a penalty by throwing the embarrassing (for POPLA's credibility) and completely irrelevant 'Beavis case' wording template at it, in some vague and ill-advised attempt to justify the unjustifiable. 'Beavis' was about a contract, a private 'parking charge'. This one purports to be a penalty and can go nowhere on that basis.

    Finally on this point, I see that the terms and conditions state: “A Parking Charge Notice (PCN) will be issued for failure to comply with the Terms and Conditions”, which includes “Failure to pay all the charges due for your parking”. Indigo did not issue a 'Parking' Charge Notice so they have failed at the first hurdle to ensure their notice was properly given. And there is no dispute that I did pay for my parking.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • squidster69
    squidster69 Posts: 27 Forumite
    Hi and thanks Coupon-mad. Yes, lovely Lewes. ...That would explain the avatar I guess.

    Iv'e updated my appeal with your suggestions, same link.

    So do these Indigo cases, where they've issued a Penalty Notice instead of a A Parking Charge Notice, all get upheld straight away on this point alone?

    I already have the POLPA reference, so should I aim to add more to my appeal and/or wait for a period of time before submission? ...or does that not matter as long as within the 28 days from initial appeal rejection?
  • Redx
    Redx Posts: 38,084
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    edited 23 July 2017 at 4:21PM
    I did say RINGO or similar , so whatever any pay by phone app might be (I never use them but know there are several)

    its normally irrelevant regarding the 28 days for POPLA (not POLPA) , BUT as bylaws apply its highly relevant as far as a TOC taking you to magistrates court under those bylaws (not that we ever see it happen) , so that is the ONLY REASON for any delay in submission (6 months deadline for the TOC to enforce it)

    usually POPLA have dismissed these cases from jan 2017 due to the bylaws issue not being resolved , especially when the KEEPER is the one submitting an appeal (so where the driver or owner has not been determined)

    but recently they have been putting them on hold pending a decision by the DoT about railway land etc , so , who knows ? they dont come here and update us !!! (its the feedback we get that tells us things)

    the longer the appeal, the harder it is for them to unpick all the legal points, so a long appeal might get them to throw in the towel, it certainly does with APCOA

    but INDIGO recently took health workers to court for UHW , Cardiff , so never assume
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