Hi all,
Many thanks for all of your advice so far. Indigo rejected the appeal. I have started putting my appeal to POPLA together as follows:

1. No NTK has been served. Its day 59 today (penalty notice was received on July 28th).
2. Indigo has not shown that individual it is pursuing is the driver
3. Railway land is not relevant land.
4. No evidence of landowner authority

So that's obviously just bare bones at the moment. I am concerned however that we don't have a 'signage/ticket' point to rely on. My husband did, mistakenly, buy the wrong ticket online - it wasn't a season ticket and the signage in car park is clear. So do I just not mention that point at all?

Thanks very much.

It might be 'clear' in terms of visibility, but that's not the issue. Does it comply with the requirements of the BPA Code of Practice?

But at POPLA you don't do Indigo's job for them. You state that the signage is unclear and doesn't comply with the CoP, then let Indigo deal with refuting that. If your assertion is successfully rebutted by them, it doesn't mean you lose the appeal.

Indigo have to 'win' on every appeal point you make in order for POPLA to find against you. You only need to win on one single appeal point to have your entire appeal upheld.

Give them plenty of hurdles to jump! Likely is they won't even contest your appeal - you win, get on with your lives. The end is nigh.

Search this board for 'Lewes Indigo' and base your appeal on that one. Make sure you include the point about Indigo misleadingly calling it a 'Penalty'.

Hi again. Many thanks for your help and advice. I have drafted a POPLA appeal and I would be grateful for your comments. I think that my last paragraph is the weakest which is why I have put it last!
Dear Sirs,

I refer to a PCN issued by the Operator Indigo on XXXX 2017:

POPLA Ref: XXX
Indigo PCN Ref: XXX

The operator, Indigo, must either be able to show that it is pursuing the driver to recover the charge or comply with Schedule 4 (Recovery of Unpaid parking charges) of Protection of Freedoms Act 2012 (PoFA) to transfer liability to the keeper.

Indigo has not satisfied either of these requirements and the PCN should be cancelled for the following reasons:


1. A compliant Notice To Keeper (NTK) was never served - no Keeper Liability can apply


The wording in Schedule 4 of PoFA is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. The notice to the driver, ie, the penalty notice left on the windscreen, was given on XXX 2017. Accordingly, the 56 day period expired on XXX and no NTK has been received.

As Indigo has failed to serve a NTK and, therefore, has failed to comply with the requirements set out in PoFA 2012, there is no keeper liability and I cannot be held liable to pay this charge.

2. Railway Land Is Not ‘Relevant Land’

Paragraph 1 of Schedule 4 of PoFA 2012 provides that it only applies where:

“(a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”.

Paragraph 3 defines “relevant land” as follows:

“relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”.

And that: “(3) For the purposes of sub-paragraph (1) (c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question”.

Railway land is covered by the Railway Byelaws 2005 and is, therefore, subject to statutory control and is not “relevant land” within the meaning of PoFA. It is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land.

Indigo has already admitted this fact as its penalty notice refers to the fact that the car park is governed by Railway Byelaw 14.


3. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

As I have stated above, Indigo cannot rely on ‘keeper liability’ under Schedule 4 of PoFA and can only require the driver to pay the charge.

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.

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 by Indigo that I was the driver, then I am not liable to pay the charge.

The burden of proof rests with the operator 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.

Furthermore, 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.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

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.''



4. 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 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”

5. Ticket was purchased

The ticket to park in the station car park was purchased online using the Indigo website. It was for a two week period. Neither the Indigo website nor the email receipt referred to the fact that the purchased ticket did not allow the driver to park before 9am as it was not a season ticket. The driver was unaware that the car park was a season ticket holder car park before 9am.

The BPA Code of Practice Part B Operational requirements in England & Wales Section 18.1 states that
“In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start”

Indigo has failed to comply with the Code of Practice as, at the time of ticket purchase - the start of the contract, the terms and conditions governing parking, ie, that a specific type of ticket was required to park before 9am, had not been communicated to the online purchaser.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Yours sincerely,
Firstname Surname

Appeal was successful! Thanks everyone for your excellent advice. I will post appeal decision on POPLA board but basically Indigo did not contest the appeal.

why did POPLa hear your appeal? they have clearly stated back at the end of september "
The British Parking Association (BPA) has campaigned at length for clarity on the Clauses in Railway Byelaws pertaining to parking to be improved. Government committed at a meeting in January to provide clarification but due to various circumstances, some beyond their control, this has not been forthcoming.

We firmly believe that effective legislation that is not open to interpretation is vital in ensuring a fair environment for both our members and motorists. That is why we have taken the decision to temporarily remove the requirement for our members, who manage parking at railway locations under the Byelaws, to offer an independent appeal via POPLA.

Motorists who breach the advertised Terms & Conditions and receive a Parking Charge Notice (PCN) but who believe it has been unfairly issued will still be able to appeal to the operator. If however they remain unhappy following an appeal!!!8217;s rejection the final decision can be made at a Magistrates Court.

In the meantime we will continue to work with Government to achieve a resolution to Railway Byelaws Clauses."

the BPA should make there mind up , or is it a case of indigo giving codes when they feel like it?

Basically he hadn't realised that the weekly tickets were not 'season' tickets

According to National Rail, a seven day pass is a season ticket

You can buy a season ticket for seven days or any period between one month and a year:

http://www.nationalrail.co.uk/times_fares/ticket_types/season_tickets.aspx

If this is the case, none of the other stuff, identity of driver, POFA, signs, etc, has any relevance.

They may have obtained your data from the DVLA without due cause in which case you may have a claim against them under the DPA. Awards of up to £750 have been made by the courts.

Complain to the BPA, National Rail, your MP, the TOC, trading Standards, and, if applicable, the DVLA