Hi all again,
I'm on day 54 so am about to post my POPLA Appeal.
Would you be able to look and see if this is sufficient.
I have plaigiarised a previous POPLA appeal to fit my requirements.
Thanks
WileE
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Dear Sir / Madam,
This appeal is being made by the registered keep of the vehicle in question, makes no indication of, and there will be no admissions as to who was driving and no assumptions can be drawn.
This appeal is placed on the following grounds:
1. Failure to establish owner & no Notice to Keeper (NTK)
2. The location in question is not relevant land
3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
4. No Authority
5. The signage was not readable so there was no valid contract formed between Indigo and the driver
6. 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.
7. Misrepresentation of standing / fraud
1.1 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 particular case is a third-party agent pursuing the day to day keeper.
1.2 No Notice to Keeper (NTK)
There has been no (NTK)
Furthermore, To-date and with the time period set out by the POFA 2012 exceeded:
As the registered keeper, I have not received any form of Notice to Keeper.
This would preclude Indigo from pursuing the registered keeper, (myself) for any liabilities under the POFA 2012, in the absence of any proof (as in this case) as to who the driver was.
As they may try and do, despite the land not been ‘relevant land’ as it is covered by railway by-laws.
2. 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 authorisation can be provided I challenge it’s 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 authorisation 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.
3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref: POPLA case Carly Law 6061796103). In the operators own evidence (Please see attached .pdf) provided in the initial appeal rejection, merely shows the vehicle and provides no evidence what so ever as to who the driver may have been.
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. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid Notice To Keeper.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and only Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.
The burden of proof rests with the Operator, 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.
Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.!
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.
This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
"I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal."
The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point above.
4. No 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.
5. The signage was not readable so there was no valid contract formed between Indigo and the driver.
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 vehicle was ‘Failing to display a valid ticket or voucher” constituting a ‘Breach code 1; Failing to display a valid ticket or voucher’ (I would assume this to be a rail way By-Law breach, thus confirming that the land in not ‘relevant land’ for POFA 2012 keeper liability).
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.
Having visited the car park in question myself, on a separate occasion, to view the signage (pictures attached), on entering the road there is no situated in an immediate prominent position that could be stated as clearly readable without a driver having to turn away from the road.
The sign also breaches another point in Appendix B, requiring the sign to identify who the car park is ‘managed by’. This is not optional information, but is clearly marked as ‘required’. The parking sign attached clearly demonstrates that this prominent or obvious.
The BPA code of practice also states (18.3) You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. The badly positioned entrance sign is the only access point for this information. As stated by Indigo, the terms and conditions are only displayed at the entrance to the car park.
The third-party telephone payment system 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.''
6. 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-***/request/enforcement_of_railway_byelaw_14**
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’, especially on non-relevant land.
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 Code of Practice.
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).
7. Misrepresentation of standing / fraud
In Indigos correspondents with my initial appeal via their own appeals service (please see attached .pdf for your reference), the alleged parking charge notice is repeatedly referred to as a ‘Penalty Notice’. It is my understanding that only a court of law can impose a ‘Penalty’, there for Indigo are misrepresenting their own standing and authority to issue such Penalty’s which is misleading and fraudulent behaviour.
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