Inidgo Parking fine, in which I forgot to purchase a ticket. Rejected appeal.....

Wow, I can't believe how quick everyone replied!! Thanks very much!

So I now understand the 'Non relevant land as byelaws apply' appeal, after going through the Newbies PoPLA section and also reading some of the links to the (sort of) recent news articles. My only problem is that I am struggling to find the correct template.

Also, just incase this any of this is important, as use of the word Penalty is used, here is the section from the letter that Indigo sent me regarding the rejection of my appeal;

'Your appeal has been rejected because no payment was made. There is more than one method of payment. You were therefore in breach of terms and conditions

Having reviewed the circumstances surrounding the issuing of the above Parking Charge Notice, and having considered your reasons for appeal, our decisionis to uphold the Penaly Notice. '

Just incase that makes any difference.

But as mentioned it seems the Non relevant land as byelaws appy is the way forward. I just would appriciate some help in finding a good template.

Many thanks again with all this

Hi,

So below a copy of the pdf I will send to POLA. Do you think this is ok?

Appeal re POPLA code: 606xxxxxxx –xxxxxxx xxxxxxx v Indigo Ltd I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I was NOT the driver. I contend that I am not liable for this parking charge on the basis of the below points:


The use of the term ‘Penalty Notice’

I consider this to be a misrepresentation of authority in accordance with Section 14 of the BPA Code of Practice. Within this, it states as follows:
“14.1 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’.”
From this it is clear that parking operators who are approved by the British Parking Association should not misrepresent its authority to the public. With the use of the phrase “enforcement charge”, it is my belief that motorists could mistakenly believe that the parking operator is carrying statutory enforcement work “under the statutory powers of the police or any other public authority”. From this, I can only conclude that the operator has failed to adhere to the minimum requirements of the BPA Code of Practice also.

The operator has not shown that the individual who it is pursuing is in fact 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.
Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. 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 charge cannot be enforced against a keeper without a POFA-compliant NTK.
The burden of proof rests with the Operator, because they cannot use the POFA in this case, 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 –they will fail to show I can be liable because the driver was not me.
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.''
No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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.'


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 then 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, 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 BPA CoP 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

Ok, does this then cover the points I need to make?

1. The location in question is not 'relevant land' as defined by the Protection of Freedoms Act 2012, as it is owned by Southern Rail 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 Southern Rail, 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 Southern Rail to whom I can direct a complaint. Further, the Operator has not provided an unredacted copy of their contract with the landowner as required under Section 7 of the BPA code of practice. The operator has omitted clear information about the process for complaints including a geographical address of the landowner.
2. The Operator has affixed a “Penalty Notice” to the vehicle which is a misrepresentation of authority under clause 14.2 of BPA code of practice, with whom the Operator is affiliated. It appears this has been done in order to intimidate the general public into paying a legal penalty such as a traffic warden would issue, rather than a Parking Charge that the operator is able to issue. The term “Penalty Notice” is used twice with prominence on the issued paperwork. (Appx 3)
3. I believe that the signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. The unremarkable and obscure signs are blocked by other vehicles parked in bays directly in front of them, and cannot be read by drivers. The photograph submitted by the Operator showing terms and conditions on site is illegible, and cannot be accepted to form the basis of an offer resulting in agreed contract.


I also took a pic of the main sign at the entrance to the car park this morning, (i'd upload it but I'm not sure how to) and it mentions 'Penalty Notice' quite prominantly twice, along with something about 'Railway Byelaws'. Surely they can't be allowed to carry on using this information on signage?!?

Many thanks again to all thise who've helped btw....