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"Parking infringement" at Lichfield Trent Valley 24 January 2018
reluctantdecorat...
post Sun, 18 Feb 2018 - 20:53
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Apologies if this looks like the many other posts on this forum, but having felt very clear over what to do I am now feeling somewhat confused.

The driver parked for two days at Lichfield Trent Valley Station with two one-day tickets bought online the night before.

When the driver got to the station there were no spaces, so parked at the end of a row, between one car in a bay and one car beyond the end of the row. There were many cars parked as in the same way, either single or double parked outside of marked spaces.

On the driver's return on the evening of the second day there was a "Penalty Notice" from Indigo Parking Solutions on the windscreen, quoting Rail Bylaw 14, giving as a reason Breach Code 3 - Parked in an unauthorised area.

Looking around there were a few cars with Penalty Notices, but even more not in marked bays without Penalty Notices. The driver photographed four of the cars without Penalty Notices, hopefully in such a way as not to show the number plates, but to show the lack of bay markings. That appears to show a complete lack of regard for any losses that the company may have suffered.

The rear of the Penalty Notice states that "Disputes pertaining to the aforementioned appeals process maybe (sic) referred to the "Parking on Private Land Appeal Service". However, as I was paying for the tickets, I spotted a notice in passing, not obvious so don't know why I spotted it, that POPLA doesn't apply to this car park.

When challenging the "Penalty Notice", I was going to use the template on the MSE Newbie Thread duly modified, see below.

Re Penalty Notice number:

I am the keeper of the vehicle which received this purported "Penalty Notice". There will be no admissions as to who was driving and no assumptions can be drawn. I am not liable and I believe that your signs fail the test of "large lettering" and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs are in small print and the onerous terms are not readable.

Should you fail to cancel this PCN immediately, I require the following information with your template rejection:

1. Does your charge represent damages for breach of contract? Answer yes or no.
2. Please provide dated photos of the signs that you say were on site, which you contend formed a contract
3. Please provide all photographs taken of this vehicle.

I am alarmed by your contact and I do not give you consent to process any data relating to me, or this vehicle. I deny liability and will not respond to debt collectors. You must consider this letter a Section 10 Notice under the DPA, and should you fail to respond accordingly, your company will be reported to the Information Commissioner.

I have kept proof of submission of this appeal and will also be making a formal complaint to your client landowner.

If you are a current BPA member, send me a POPLA code. If you are an IPC firm, cease and desist with all contact.

Yours faithfully,[/i]

Name and address of Registered Keeper

As I bought the ticket online, how relevant is this to the driver concerned? I cannot see the relevance of the notices in the car park, although there are no clear signs on the way in.

In light of the post from Dramaqueen in the Flamepit on Indigo Parking's use of the DVLA and subsequent discussions I decided not to wait for the NTK see link below:
http://forums.pepipoo.com/index.php?showto...p;#entry1352640 .

I don't know if it's relevant, the car park shown on the website is the one on the northbound trackside. The car was parked on the car park on the southbound trackside. The tickets that are available for purchase both online and on the station seem to be accepted for both car parks, although the online ticket states it is for the Station Approach car park, i.e. on the northbound side.

I looked at Lynnzer's example "dispute" letter but as the dispute seems to be at a different stage it can't be used.

Any help would be appreciated. Deadline for submission of the dispute on the suggested timescales is tomorrow, Monday 19 February. I think I have been puzzling over this for too long so my request is a bit late. Sorry.

This post has been edited by reluctantdecorator: Mon, 19 Feb 2018 - 17:12
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post Sun, 18 Feb 2018 - 20:53
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dramaqueen
post Wed, 25 Jul 2018 - 12:49
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I think you need to be careful to differentiate between the No Reaasonable Cause arguments (meaning the DVLA should not be disclosing the data, period); and the specific KADOE arguments (meaning Indigo should be making manual requests only).

No Reasonable Cause
I think you are on sticky ground arguing that railway car parks are not private land. Following privatisation in the 1990s they ended up being owned by Network Rail, which was incorporated in 2002. As such they are generally accepted as private land.

I think your best argument would be the compelling evidence that Indigo are using data for illegal purposes - namely fraud, contrary to s2 Fraud Act 2006. With the apparent intention of “persuading” drivers/owners/and or keepers to pay their unenforceable penalties, they make the following false representations:-

1. Their car park signs say the penalty for breach is £100, and “If paid within 14 days this is reduced to £60. Failure to pay is an offence…..” (I imagine West Midlands car park signs are the same as Govia ones?). The wording clearly suggests that failure to pay the penalty is an offence in itself. This is a compete lie. If in doubt, the reply to this FOIR confirms there is no such offence as breach of Byelaw 14(4)(i): https://www.whatdotheyknow.com/request/stat...ncoming-1125123

2. Indigo’s windscreen notice states that “Payment is due within 28 days…” and “If payment is not received within the payment period stated on the notice, this will result in action being taken to recover the full value of the Penalty Notice…” This suggests their home-made penalties are enforceable and recoverable in law. They are not. The only penalty anyone is obliged to pay is one imposed by the Magistrates’ Court following conviction. (Indigo’s assertion that their pre-conviction penalties are recoverable in law is not only false: it also tramples on the most fundamental principle of criminal law - that everyone is innocent until proved guilty.)

3. Whilst the NtO backtracks a little by saying the penalties are offers - which, like all offers can be accepted or rejected - the follow-up letters from ZZPS and QDR use words such as “debt recovery charges”; “balance owing”; “we require you to make payment in full”; “outstanding liability”. Since you have not accepted their kind offer there is no debt, no liability, no balance owing. All such assertions are false and the demands for payments are wholly unwarranted.

4. The NtO states “You may be legally liable for this offence even if you were not the driver at the time.” This is a lie. You cannot possibly be liable for the offence of parking in an unauthorised area (contrary to Byelaw 14 (2)(ii)) unless you were in charge of the vehicle at the time - ie the driver.

In the absence of any plausible explanation it’s reasonable to conclude that these false representations - and there are probably others - were dishonestly made with the intention of getting you to pay up. By no stretch of the imagination can fraud fall into the definition of “reasonable cause”. I think these are the misrepresentations you should concentrate on, rather than Indigo’s threat to prosecute. Who is allowed to prosecute is a bit of a moot point - one I raised in the Flame Pit, here: http://forums.pepipoo.com/index.php?showto...ate+prosecution The general consensus then was, anyone is entitled to bring a private prosecution. Indigo wouldn't be doing it on behalf of the TOC - they would be doing it in their own right.


The specific KADOE arguments:-
i) KADOE not to be used for byelaws penalties: I think your letter gets a bit diverted because of the private land argument, which is not a good point. So I suggest you start the KADOE point with your second paragraph:
I note your comment that Indigo Park Solutions Ltd “are allowed to to use the electronic route for offences involving bylaws when it comes to parking”. Then say “However the KADOE contract is absolutely clear: it is only for recovery of unpaid parking charges (see clause B2) ”; and then pick up from your last paragraph the bit about what defines parking charges. Finish it off with your para 3, asking them to state specifically where and when this allowance was made.

ii) Something else that might be worth a mention: since you did not accept Indigo’s offer, and therefore no debt arose, they had no cause to pass on your details to debt collection agents. I don’t suppose this point will get you very far, but it’s useful for driving home the point that there is NO DEBT and any assertions that there is anything for debt collectors to concern themselves with are false.


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Redivi
post Wed, 25 Jul 2018 - 14:42
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The parking event was 24 January
The six months deadline to prosecute expired yesterday

If there is no prosecution already in play, as far as the Byelaw is concerned the matter is closed

It gives scope for an escalated complaint to the DVLA if you receive any more demands for payment

Indigo requested the keeper details because it informed the DVLA it wanted to enforce a byelaw penalty
It hasn't prosecuted

If it demands payment again it will be in the knowledge that it is not owed
The keeper details were therefore requested for a reason that is different from the one that was stated

There's also a case for demanding that Indigo confirms that all your data is to be immediately deleted
It has no reason to retain it and a complaint to the ICO can follow if the request is ignored

This post has been edited by Redivi: Wed, 25 Jul 2018 - 15:39
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reluctantdecorat...
post Tue, 31 Jul 2018 - 15:13
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Thank you both for your input. My wife is very happy that the deadline for prosecution has passed, and we will be looking out for any further contact from Indigo or its agents.

Since getting your responses, I have managed to get a photo of the only notice which is at the entrance to the car park. Incidentally it is unreadable by an approaching driver and some considerable distance from the majority of the parking spaces. It quotes failure to pay as an offence under railway bylaw 24 (1) not 14 (4).

Below is the revised draft, which has been amended following dramaqueen's excellent and detailed response. I would be grateful for further comment in case there is stuff I have missed, e.g. should I include the references to the FoI requests or was that for my general information?

Paul Timms
DVLA Complaints Team
Longview Road
Morriston
Swansea
SA6 7JL

XX July 2018

Dear Mr Timms,

Re: Reg and Model

Thank you for your response of XX Jun to my complaint of YY May. Please accept my apologies for the delay in getting back to you, we have been away on holiday.

For example, on the Government website, www.gov.uk/request-information-from-dvla it states that a company can request information about a vehicle in the following circumstances providing they have reasonable cause:

• finding out who was responsible for an accident
• tracing the registered keeper of an abandoned vehicle
• tracing the registered keeper of a vehicle parked on private land
• giving out parking tickets
• giving out trespass charge notices
• tracing people responsible for driving off without paying for goods and services
• tracing people suspected of insurance fraud

As there was a valid parking ticket, and I had pointed out to Indigo Park Solutions UK Limited that I was not the driver nor the vehicle's owner, I believe they are using data for illegal purposes - namely fraud, contrary to s2 of the Fraud Act 2006, with the apparent intention of “persuading” drivers/owners/and or keepers to pay their unenforceable penalties, they make the following false representations:-

• Their car park signs say the penalty for breach is £100, and “If paid within 14 days this is reduced to £60. Failure to pay is an offence under Bylaw24 (1)”. The wording clearly suggests that failure to pay the penalty is an offence in itself. This is untrue
• Indigo’s windscreen notice states that “Payment is due within 28 days…” and “If payment is not received within the payment period stated on the notice, this will result in action being taken to recover the full value of the Penalty Notice…” This suggests their penalties are enforceable and recoverable in law. They are not. The only penalty anyone is obliged to pay is one imposed by the Magistrates’ Court following conviction. (Indigo Park Solutions UK Limited's assertion that their pre-conviction penalties are recoverable in law is not only false, it also tramples on the most fundamental principle of criminal law - that everyone is innocent until proved guilty.)
• Whilst the NtO backtracks a little by saying the penalties are offers - which, like all offers can be accepted or rejected - the follow-up letters from ZZPS and QDR use words such as “debt recovery charges”; “balance owing”; “we require you to make payment in full”; “outstanding liability”. Since I had not accepted their kind offer there is no debt, no liability, no balance owing. All such assertions are false and the demands for payments are wholly unwarranted.
• The NtO states “You may be legally liable for this offence even if you were not the driver at the time.” This is untrue. I cannot possibly be liable for the offence of parking in an unauthorised area (contrary to Byelaw 14 (2)(ii)) as I was not in charge of the vehicle at the time - ie I was not the driver and had informed Indigo Park Solutions UK Limited of that fact.

In the absence of any plausible explanation it’s reasonable to conclude that these false representations - and there are probably others - were dishonestly made with the intention of persuading me to pay up. By no stretch of the imagination can fraud fall into the definition of “reasonable cause”. These appear at best to be misrepresentations if not fraud.

As a further matter, the use of Protection of Freedoms Act (PoFA) on a bye-law controlled area is not available to Indigo Park Solutions UK Limited. The land is defined as not being relevant land in accordance with PoFA so only a driver has any liability in that case. They cannot invoke Keeper Liability under PoFA. It simply falls outside of the scope of PoFA.

In any case, it is quite evident that Indigo Park Solutions UK Limited have acted unlawfully in obtaining my personal details where they had no reasonable cause. The acquisition and use of my personal details is a breach of the principles of the Data Protection Act which is unlawful.

I note your comment that Indigo Park Solutions UK Limited "are allowed to use the electronic route for offences involving bylaws when it comes to parking".

However the KADOE contract is absolutely clear: it is only for recovery of unpaid parking charges (see clause B2). Indigo Park Solutions UK Limited's KADOE contract defines what is meant by "parking charges", and this definition does not include using the charge to avoid a criminal prosecution, as on the "Penalty Charge Notice" on my original letter.

Could you please state exactly where and when where this allowance was made, as it appears from the publicly available documentation that this is specifically disallowed.

I look forward to hearing from you shortly.

Yours sincerely,



Thanks again.
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dramaqueen
post Tue, 31 Jul 2018 - 18:17
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Well done - things will only change if people like you keep on complaining! It'll be very interesting to see what they come back with.

I'll have money on it it'll be something along the lines of "We are satisfied there is reasonable cause to disclose the data". Which is true of course. The point they are determined to miss is that Indigo are using the data for a different purpose - one which does not constitute reasonable. cause .
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Gary Bloke
post Sun, 6 Jan 2019 - 20:23
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Did the DVLA ever reply to the last letter above?
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