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Parking Notice / Indigo / Cooksbridge Train Station
Reluctantcommute...
post Mon, 12 Dec 2016 - 22:02
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Hi

I've tried to understand my options from reading the posts on the forum and other sites.

I'm reaching out on here as there seems to be lot of knowledgeable people on this forum with regards to options when becoming a recipient of a parking ticket.

To summarise my situation, I parked at a station car park it was not in a marked bay but a space between a disabled space and bike rails. I was not parked on any hatchings, double yellow lines or causing an obstruction. In fact other cars have parked in that 'space' on a regular basis. But I received a penalty notice £100, but reduced to £60 if paid within 14 days.

The car park is small and has around 15 marked bays. It is a very rare in that it is a free car park. Unless of course you receive a ticket like me. The ticket infers that the station belongs to Southern rail as they have issued it on their behalf.

So the ticket mentions byelaw 14 and a breach code 7 - not parked in a marked bay.

The terms and conditions of the car park are on a sign which is normally blocked behind parked cars, but having retrospectively viewed the sign when no cars were there, it mentions that one of the instructions or terms of use is that a car must be parked in a marked bay or authorised area.

My question is therefore is it realistic for me to challenge the ticket and if so what the best way to go about it is?

My initial thoughts on the grounds of appeal would be:
- no breach - breach code not in the byelaws. Also there are parts of the car park which has double yellow lines parked and where I parked doesn't. Could I argue that where I parked was assumed authorised as no double yellow lines?
- no authority - byelaws only enforceable by a court. Indigo are not the Court or have the power of the Court?
- unreasonable / unfair terms - the car park is free to park in therefore penalty charge is not proportionate.
- illegible signage - the sign although raised is behind parking bays, therefore normally cars would be in the way of the sign.

Do I have grounds to appeal? And if I do should I do this with Indigo or should I try to get this resolved through POPLA? If I do I understand that there is a way to do this. But having read various posts, it's not clear what I should do.

It is my wife's car and she is getting stressed that she will be chased by bailiffs if I don't settle the parking ticket, so any advise, even if it is tough luck but you should pay the ticket, would be gratefully received.

Many thanks

RC
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post Mon, 12 Dec 2016 - 22:02
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SchoolRunMum
post Tue, 13 Dec 2016 - 00:37
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Your wife needs to be the named appellant, as keeper, so get that right from the start. Do not blow it by appealing as driver. Honestly. If you want to win, appeal this in your wife's name and you have to follow the procedure for appeals on the PCN, only then do they release a POPLA code.

QUOTE
My question is therefore is it realistic for me to challenge the ticket and if so what the best way to go about it is?

Yes, certainly. I won 3 Sussex Indigo POPLA appeals for a friend in the Summer by appealing as per this advice thread that I wrote on MSE:

http://forums.moneysavingexpert.com/showthread.php?t=4816822

It does work, get it right and only submit the appeal on day 25 or 26 (reasons are explained in the NEWBIES FAQS thread there). The driver is not named.

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Gan
post Tue, 13 Dec 2016 - 01:28
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The tactic with railway parking is to spin the process out as long as possible
Once past six months it's too late for a prosecution

This is therefore one of the exceptions where I wouldn't make the appeal at 26 days
This will be rejected by about Day 35 which would give a deadline to take it to POPLA by Day 63

The Notice to Keeper must arrive between Day 28 and 56
If it arrives at the earliest date, the appeal doesn't have to be made until Day 56
Assuming a week for the rejection, the POPLA appeal doesn't have to be made until Day 91

The first strategy hopes that Indigo will forget to send the NtK so that "no POFA" can be argued at POPLA
The second strategy takes you four weeks nearer to timing out the notice and "no POFA" can still be argued because of the existence of the byelaws



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Lynnzer
post Tue, 13 Dec 2016 - 07:09
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QUOTE (Gan @ Tue, 13 Dec 2016 - 01:28) *
The tactic with railway parking is to spin the process out as long as possible
Once past six months it's too late for a prosecution

This is therefore one of the exceptions where I wouldn't make the appeal at 26 days
This will be rejected by about Day 35 which would give a deadline to take it to POPLA by Day 63

The Notice to Keeper must arrive between Day 28 and 56
If it arrives at the earliest date, the appeal doesn't have to be made until Day 56
Assuming a week for the rejection, the POPLA appeal doesn't have to be made until Day 91

The first strategy hopes that Indigo will forget to send the NtK so that "no POFA" can be argued at POPLA
The second strategy takes you four weeks nearer to timing out the notice and "no POFA" can still be argued because of the existence of the byelaws

And of course POPLA is still holding off on byelaw cases for now,


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Reluctantcommute...
post Tue, 13 Dec 2016 - 09:17
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QUOTE (SchoolRunMum @ Tue, 13 Dec 2016 - 00:37) *
Your wife needs to be the named appellant, as keeper, so get that right from the start. Do not blow it by appealing as driver. Honestly. If you want to win, appeal this in your wife's name and you have to follow the procedure for appeals on the PCN, only then do they release a POPLA code.

QUOTE
My question is therefore is it realistic for me to challenge the ticket and if so what the best way to go about it is?

Yes, certainly. I won 3 Sussex Indigo POPLA appeals for a friend in the Summer by appealing as per this advice thread that I wrote on MSE:

http://forums.moneysavingexpert.com/showthread.php?t=4816822

It does work, get it right and only submit the appeal on day 25 or 26 (reasons are explained in the NEWBIES FAQS thread there). The driver is not named.


Thank you for replying and for your advice.

So is the onus on Indigo to establish who the driver was, and the keeper is not obliged to provide details of who the driver was at the time?


QUOTE (Gan @ Tue, 13 Dec 2016 - 01:28) *
The tactic with railway parking is to spin the process out as long as possible
Once past six months it's too late for a prosecution

This is therefore one of the exceptions where I wouldn't make the appeal at 26 days
This will be rejected by about Day 35 which would give a deadline to take it to POPLA by Day 63

The Notice to Keeper must arrive between Day 28 and 56
If it arrives at the earliest date, the appeal doesn't have to be made until Day 56
Assuming a week for the rejection, the POPLA appeal doesn't have to be made until Day 91

The first strategy hopes that Indigo will forget to send the NtK so that "no POFA" can be argued at POPLA
The second strategy takes you four weeks nearer to timing out the notice and "no POFA" can still be argued because of the existence of the byelaws


Thanks for this.

So if Indigo do issue a NTK via DVLA records, presumably they can add the cost on to the 'penalty' if they were successful?

Wife is flapping a bit as its her car and she doesn't want to adversely affected by this understandably.

The first strategy would potentially bring this to a conclusion quicker - so even if we receive a NTK, unless Indigo can establish who the driver was, then the penalty fails on that point?
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Lynnzer
post Tue, 13 Dec 2016 - 10:24
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Let's try and make this easy to understand.
Railway companies using byelaws are bound to stick to the rules as defined in the byelaws.
They often use the Private Parking Companies to operate the parking management (sic) and a PPC can only make their money from private parking contracts, not a byelaw fine.

A byelaw impoese penalties, ie fines, for a breach of the tems and conditions.

A PPC uses the very speculative loosely based contractual charges basis for making a claim.

A Byelaw offence can only make the driver responsible for the offence whereas the PPC tries to invoke liability for payment to the registered keeper if the driver isn't known to them. HOWEVER, to invoke Keeper Liability they MUST comply with the requirements of the Protection of Freedoms Act. They cannot do that as land controlled by byelaws is outside of the conditions. Of course no PPC will EVER state that. They continue to try it on against the keeper.

Their problem is that they must wrap up pall their own private contractual claim within 6 months or the potential of them telling the rail company to take magistrates court action is lost. In the meantime they won't ever pass a live case to the rail company as it means they get no pay. A fine goes to the Treasury.

So what we have to do is to delay things as long as possible so that the 6 months comes and goes. After that you can tell them to sod off.

It's more complicated than that though. The operation of this sort of racket on railway land is one of considerable abuse. Very few PPC's ever take any action in court, and win their case.

I'm trying to think of new ways to lay a claim for breach of the Data Protection Act against the PPC's right now and will no doubt have something drafted up shortly.

In the meantime though, your wife has no reason to get stressed out. No-one wil come knocking on the door to take the telly away, there will be no CCJ, there will almost certainly be no court action either. Just follow advice on here and string this out for as long as you can.

The next thing that will happen is the arrival of the Notice to Keeper. That's when the fun starts.


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Reluctantcommute...
post Thu, 15 Dec 2016 - 08:06
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QUOTE (Lynnzer @ Tue, 13 Dec 2016 - 10:24) *
Let's try and make this easy to understand.
...

The next thing that will happen is the arrival of the Notice to Keeper. That's when the fun starts.


Lynnzer thank you for taking the time to post and for making it simpler to understand.
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Gary Bloke
post Thu, 15 Dec 2016 - 22:47
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"I'm trying to think of new ways to lay a claim for breach of the Data Protection Act against the PPC's right now and will no doubt have something drafted up shortly."

The NTK letter sent out from ZZPS (on behalf of Indigo) states that the penalty is in fact "an opportunity to avoid a criminal prosecution". So it's not a charge for a breach of civil contract. Nor can it be a penalty for breach of a byelaw, because these penalties can only be imposed by a Magistrate's Court. This latter fact was confirmed earlier this year by the Department of Transport in response to FoI request 0013227.

Now, Indigo should only request data from the DVLA for the purposes defined in its KADOE contract with the DVLA. This contract specifies that data is made available for the purpose of pursuing "parking charges". The KADOE contract defines what is meant by "parking charges", and this definition does not include using the charge to avoid a criminal prosecution.

So, either Indigo and / or the DVLA are in breach of the Data Protection Act, because the personal details are being requested for, and released for, a purpose that is not covered by the KADOE contract.

Furthermore, offering “an opportunity to avoid a criminal prosecution” is equivalent to solicitation of a bribe, ie requesting a financial (or other) advantage, intending that the performance of a relevant function should be performed improperly. It is a criminal offence under the Bribery Act 2010.

For this reason alone, Indigo are in breach of the BPA Code of Practice, which requires members of the BPA to observe the relevant laws of the land. They are also in breach of the CoP because they make extensive use of the word "penalty" in their parking tickets, signage and NTK letters. The word "penalty" is expressly forbidden in the CoP. There are other reasons, including the fact that the Indigo signage in my local car park contains statement that are clearly untrue and seek to present Indigo as operating under statutory authority.

As far as I can see, the whole Indigo business model is illegal.

[attachment=45610:Meteor_K...Contract.pdf]
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Reluctantcommute...
post Fri, 30 Dec 2016 - 22:13
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QUOTE (Gary Bloke @ Thu, 15 Dec 2016 - 22:47) *
"I'm trying to think of new ways to lay a claim for breach of the Data Protection Act against the PPC's right now and will no doubt have something drafted up shortly."

The NTK letter sent out from ZZPS (on behalf of Indigo) states that the penalty is in fact "an opportunity to avoid a criminal prosecution". So it's not a charge for a breach of civil contract

.......

As far as I can see, the whole Indigo business model is illegal.

[attachment=45610:Meteor_K...Contract.pdf]


Very interesting.

So should there be a complaint also to the BPA for the breach?

Also is it worth complaining directly with Southern the landowners?

If the PPC cannot legally enforce tickets why do railway companies outsource car park management to PPCs?

Thanks

RC



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SchoolRunMum
post Fri, 30 Dec 2016 - 22:35
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For now just diarise for the keeper to appeal on day 25 or 26, as per post #2. DO NOT wait for the NTK because they don't send one (as such, they send a scary letter and the appeal chance will then be lost).

IMHO it is so much easier to beat this on appeal and/or let POPLA adjourn it. So the keeper engages with the appeals system in the right way at the right time, re this PCN.
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Reluctantcommute...
post Sat, 31 Dec 2016 - 08:44
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Ok thanks for your help SchoolRunMum!
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Gan
post Sat, 31 Dec 2016 - 09:20
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Also is it worth complaining directly with Southern the landowners?
Worst possible course of action at this stage
The whole point of the exercise is to prevent the incident coming to Southern's knowledge within six months
Indigo's contract with the DVLA doesn't allow it to pass on the details

If the PPC cannot legally enforce tickets why do railway companies outsource car park management to PPCs?
Because 90% of the victims don't know this and pay them anyway
It means that Indigo can afford not to charge the railway companies to run the car park

This post has been edited by Gan: Sat, 31 Dec 2016 - 09:23
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dramaqueen
post Sat, 31 Dec 2016 - 09:29
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QUOTE (Reluctantcommuter @ Fri, 30 Dec 2016 - 22:13) *
If the PPC cannot legally enforce tickets why do railway companies outsource car park management to PPCs?

Because 99% of people don't realise it's a scam, and pay up without question.

If they don't, they soon get frightened into it by a series of official-looking letters, increasing the demand and threatening dire consequences for non-payment. It's hard to keep firm in the face of all that - specially as no-one would expect a respectable train company to tell such whoppers.

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emanresu
post Sat, 31 Dec 2016 - 09:53
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QUOTE
specially as no-one would expect a respectable train company to tell such whoppers.


Have you read a timetable recently?
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Lynnzer
post Sat, 31 Dec 2016 - 10:35
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Try this. I just spent a few minutes knocking it up so it may well need some tweaking. Others will no doubt add in or edit accordingly.

Name – Address
Date
Ref PCN ******

Sir I am the registered keeper of the vehicle concerned in this case. That is (insert Reg No.)
I have received the above PCN from yourselves in relation to an alleged parking contravention at (Insert location) which I believe is an area covered under the bye-laws applicable to the car parking area.

Your PCN is not a contractual charge but is an offer to make a payment in order to avoid prosecution in a magistrates court for the alleged contravention. I respectfully decline the offer as I believe you have no rights to pass liability to myself.

As I understand it, the use of KADOE to access the DVLA database for the keeper's details is conditional on certain events. The first point is that you must only apply for details for a parking charge as defined in the KADOE Contract you have. A parking charge is defined as:
(a) a sum in the nature of a fee or charge, arising under the terms of a contract (including a contract arising only when the vehicle was parked on the land) between:  the driver and the owner or occupier of the land; or  a person authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land; and
(b) a sum in the nature of damages arising as a result of trespass or other tort committed by parking the vehicle on land, provided that adequate notice of the sum was given to the driver of the vehicle (when the vehicle was parked on the land).

The PCN you have served is not a contract. The access to the DVLA was unlawful if this point is one you rely on using.

The PCN cannot be one for trespass or other tort. Such an event would require action by the actual landowner themselves. Since no tort was occasioned there was no lawful access to the DVLA database based on that point.

Your PCN makes a claim to be issued under the Bye-laws and as an offer to avoid prosecution under the same bye-laws. There cannot be any lawful access to the DVLA database as a consequence of this. If the use of the bye-laws was to be invoked the access would need to have been made by (insert the TOC, Airport authority, Port or other bye-law operator).

Not only have you unlawfully acquired my personal details where no reasonable cause was apparent, you are unable to use the KADOE Agreement to obtain my details and to pass them to another independent party such as the (TOC, etc) as the KADOE Agreement forbids passage of personal information without prior agreement by the DVLA.

As a further matter, the use of PoFA on a bye-law controlled area is not available to you. The land is defined as not being relevant land in accordance with PoFA so only a driver has any liability in that case. You cannot invoke Keeper Liability under PoFA. It simply falls outside of the scope of PoFA.

In any case, it is quite evident that you have acted unlawfully in obtaining my personal details where you 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 now give you warning that I am claiming damages for the breach to the extent of (add in the amount based on how much anxiety and how bad the breach was). I require settlement of this amount within (x days – or before a specific date).

Failure to make good the damages will result in a claim being made in the civil courts without further notification.

I am agreeable to having this claim being subject to an amicable agreed conclusion within that time but be in no doubt that I will make the claim if no satisfactory response is agreed.


It's usual to delay things as long as possible and to only correspond close to some point of "passing to the next stage" as a 6 month timeout would occur so a TOC cannot take action themselves at that point. Also the DVLA puts a time limit on the accessing of details for the same period as well.


This post has been edited by Lynnzer: Sat, 31 Dec 2016 - 15:02


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Reluctantcommute...
post Sat, 31 Dec 2016 - 14:53
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Wow - thank you for everyone's input.

It's much appreciated!
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Reluctantcommute...
post Sat, 31 Dec 2016 - 15:05
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We've not received a NTK yet, so presumably the DVLA part doesn't apply and also if I will be providing keeper details they won't need to access the DVLA anyway? Sorry a bit confused icon_redface.gif
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Lynnzer
post Sat, 31 Dec 2016 - 15:21
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Wait for the NTK


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The Asda shopping trolley parking ticket enthusiast
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Reluctantcommute...
post Sat, 31 Dec 2016 - 15:42
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The PCN states that the appeal must be made within 28 days. Do we just ignore this as we're saying its not an enforceable Penalty Notice?

Are the time limits different - ie appeal on 25 /26 days after the PCN is not applicable because of the byelaws?

Thanks

RC
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nosferatu1001
post Sat, 31 Dec 2016 - 18:17
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Pofa isn't applicable, as the land is not relevant land

The keeper must be sent a notice to appeal. It will be stated somewhere in the parking notice

It's not a penalty notice. The Secretary of State has not authorised ANYONE to issue them.
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