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Confused PPC - refusing to issue POPLA code
prjohnsonnn
post Mon, 8 Jul 2013 - 09:42
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I would appreciate it if some of the more experienced members on here could get in touch with me via personal email for some advice here.
I have won several POPLA Appeals recently ( on basis of not a genuine pre estimate of loss) against a particular PPC who are operating railway station parking on behalf of a train company. It has now got to the stage where they have actually just put in writing to me that they now feel that they are obliged ‘ to mitigate their costs’ and will now not issue me with any further POPLA codes (I have another two cases I was asking for codes on) and that they are ‘not obliged to issue me with POPLA codes ’ given that the land falls under the scope of the Railway Byelaws definition and therefore is outside the scope of POFA . This is a gold mine statement in my view as every single piece of correspondance they issue in their collection process , including the initial ticket, is badged up citing POFA and POPLA appeal process etc etc . As regards the previous appeal cases that they have lost to me at POPLA, they have now stated that they in fact ‘voluntarily’ referred these to POPLA ! Note that on these previous cases they have submitted their evidence on the basis that it was a claim for liquidated damages for breach of contract and not a ‘penalty’ of any type that they may be looking to recover under railway byelaws. They have also confirmed to me in writing previously that they as the PPC are the creditor here and all monies go to them.
This lot have now got themselves into a real mess and like others are trying to rely on the either / or forum of Byelaw vs POFA route. Difference is here that I now have it in writing from them….
So –my next step was to write to DVLA and BPA and anyone else that you thought was appropriate here enclosing the correspondence exchange that I have had but before I do so I would appreciate people on here getting back to me with their views please.
Many thanks
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post Mon, 8 Jul 2013 - 09:42
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Broadsword
post Mon, 8 Jul 2013 - 09:46
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Name of PPC please?
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prjohnsonnn
post Mon, 8 Jul 2013 - 10:00
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Its MET
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bama
post Mon, 8 Jul 2013 - 10:26
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+1 (e-bet, ACPOA - edit da*n, lost that bet)
AIUI they go 'liquidated damages' to try to cut out the court assessing the damages but is it obnoxious as a 'penalty' ?
They can be distinguished:-
The parties to a contract may agree at the time of contracting that, in the event of a breach, the party in default shall pay a stipulated sum of money to the other. If this sum is a genuine pre-estimate of the loss which is likely to flow from the breach, then it represents the agreed damages, called 'liquidated damages', and it is recoverable without the necessity of proving the actual loss suffered. If, however, the stipulated sum is not a genuine pre-estimate of the loss but is in the nature of a penalty intended to secure performance of the contract, then it is not recoverable, and the plaintiff must prove what damages he can. The operation of the rule against penalties does not depend on the discretion of the court, or on improper conduct, or on circumstances of disadvantage or ascendancy, or on the general character or relationship of the parties. The rule is one of public policy and appears to be sui generis. Its absolute nature inclines the courts to invoke the jurisdiction sparingly. The burden of proving that a payment obligation is penal rests on the party who is sued on the obligation.
So public accounts tallied with DVLA stats re RK requests may come in handy. I have yet to see a PPC where these numbers made sense or tallied with their 'ticket price'.
The key question:- "is the stipulated sum is a genuine pre-estimate of the loss which is likely to flow from the breach"
And there are rules to help decide.
(1) although parties to a contract who use the words 'liquidated damages' or 'penalty' may be supposed prima facie to mean what they say the expression used is not conclusive. The court must determine whether the payment stipulated is in truth a penalty or liquidated damages. The intention of the parties themselves, and the literal language of the contract, may be disregarded (however clearly expressed) if the court considers that the expression of these matters does not represent the real nature of the transaction or what in truth it is to be taken to be;
(2) the question whether a sum stipulated is liquidated damages or a penalty is a question of construction and of law to be decided upon the terms and inherent circumstances of each particular contract, judged as at the time of the making of the contract, not as at the time of the breach. Accordingly, a clause which has been held to stipulate for liquidated damages in one case may in the circumstances of another be found to stipulate for a penalty. The mere difficulty in assessing damages which would ordinarily, and in the absence of the clause, be payable, far from supporting characterisation as a penalty, will generally incline the court to uphold the clause where it seeks to clarify the uncertainty as to damages and define the recoverable loss;
(3) the payment will be held to be a penalty if the sum stipulated for is extravagant and un-conscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach;
(4) the payment will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid. Cases of this kind, however, must be differentiated from those in which, for example, it is agreed to charge a certain rate of interest on condition that if the payment is made punctually a lesser rate will be accepted. Similarly, where a sum of money is to be paid by installments subject to a stipulation that in the event of one installment falling in arrear the whole sum is to become immediately payable, the court will not, on this ground alone, relieve against the stipulation on the ground that it is in the nature of a penalty;
(5) there is a presumption (but no more) that it is a penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage. This is because the stipulated sum will probably be extravagant and unconscionable in comparison with the greatest loss likely to flow from the event causing trifling damage. In short the strength of the chain must be taken at its weakest link; and
(6) the fact that the consequences of the breach are such as to make precise pre-estimation almost an impossibility is no obstacle to the stipulated sum being a genuine pre-estimate. On the contrary, this is just the situation when it is probable that pre-estimated damage was the true bargain between the parties.

(Note that a consequence of (1) is that use of the word "penalty" on their paperwork/signs is not necessarily a slum dunk winner for the motorist)
I know liquidated damages is old stuff to the Pepipoo Irregulars (you know who you are) but in the PoFA fueled dash for cash i.e. profits it bears further thought IMO. There is at least one PPC that is touting that they pay the landowner £100 for every ticket issued and another who volumes (of DVLA requests matched to income) make what some believe is a mockery of the notion that the amount is liquidated damages.
see http://parking-prankster.blogspot.co.uk/20...million-in.html

Where the PPC offers the 'service' free to the 'landowner' what liquidated damage has been created ? Especially in those locations where the 'landowner' keeps the revenue for paid for parking ? and in those locations were parking is free ?
Any wonder that some PPCs try everything they can to avoid revelaing the contract with the 'landower'.

IMO PLOPA appeals could well be beefed up with args around this that quote the DVLA stats and the reported financials of the PPC.
I wonder what the POPLA assessors will make of it.
Relying on the CoP for this aspect not a good strategy IMO - who knows
what future versions will say. instead of the CoP, or in addition to, take the law to POPLA, along with the facts reveled by the public stats.


p.s. I use 'landowner' on exactly the same way as this
http://assets.dft.gov.uk/publications/guid...ing-charges.pdf
does

This post has been edited by bama: Mon, 8 Jul 2013 - 10:37


--------------------
Which facts in any situation or problem are “essential” and what makes them “essential”? If the “essential” facts are said to depend on the principles involved, then the whole business, all too obviously, goes right around in a circle. In the light of one principle or set of principles, one bunch of facts will be the “essential” ones; in the light of another principle or set of principles, a different bunch of facts will be “essential.” In order to settle on the right facts you first have to pick your principles, although the whole point of finding the facts was to indicate which principles apply.

Note that I am not legally qualified and any and all statements made are "Reserved". Liability for application lies with the reader.
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Jlc
post Mon, 8 Jul 2013 - 10:30
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Simples - as required by the CoP, their pre-estimate of loss just needs to be justified and POPLA will rule for them.

What do the signs say as they can't suddenly switch to Byelaws on a whim. In any case, the ToC has to be involved for that.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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The Slithy Tove
post Mon, 8 Jul 2013 - 11:55
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Since they now admit that PoFA does not apply, then I hope you haven't told them who the driver was on any occasion, as they cannot use keeper liability.

Maybe you should demand from them that, since the land is subject to statutory authority, they must cease to claim any tickets they issue to anyone are issued under PoFA. That is the case, whether they intend to use the byelaw or not (it's the status of the land that matters, not the nature of the ticket).
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matt285
post Mon, 8 Jul 2013 - 12:04
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QUOTE (prjohnsonnn @ Mon, 8 Jul 2013 - 10:42) *
It has now got to the stage where they have actually just put in writing to me that they now feel that they are obliged ‘ to mitigate their costs’ and will now not issue me with any further POPLA codes


Haha, amazing. They know they're going to lose at POPLA so instead they say "we need to mitigate our costs should we ever take you to court". I hope they know you only have a duty to mitigate your costs if you have a valid claim - which they admit they don't... Game over smile.gif

QUOTE (prjohnsonnn @ Mon, 8 Jul 2013 - 10:42) *
’given that the land falls under the scope of the Railway Byelaws definition and therefore is outside the scope of POFA .


This is indeed a goldmine statement from them, and it is crucial to see what the signs say.

Under the railway byelaws there is only liability to pay charges if there are clear references on the signs that the land is subject to the byelaws. So if (like it is very often the case) the signs are the typical private contract BS then they have no remedy under byelaws to recover their charges. And they have just admitted that they neither have a remedy under POFA. Own goal.

If I were you I'd take some pictures of the signs in case they change(d) them.
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prjohnsonnn
post Mon, 8 Jul 2013 - 13:32
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Thanks for the responses so far .

Just had some more thought on this - I suspect that their stance here will be that it is a contractual issue (not a penalty etc under some byelaw) and that terms and conditions are what is referred to on the signs and that the amounts being demanded are for a breach of these etc etc . OK I get that , however, they are then saying that because the land has some other statutory oversight impacting it by way of railway byelaws (even though they arent pursuing the tickets as a byelaw issue) then this is sufficient to exclude it from PoFa as per 4.1 = see below .

On what type of land does Schedule 4 apply?
4.1 The provisions in Schedule 4 are intended to apply only on private land
in England and Wales. Public highways are excluded as well as any
parking places on public land which are either provided or controlled by a
local authority (or other government body). Any land which already has
statutory controls in relation to the parking of vehicles (such as byelaws
applying to airports, ports and some railway station car parks) is also
excluded

This gets interesting I think because they are using the contractual breach route to claim the monies and then saying that the byelaws issue around the railway land takes it outside of PoFA. I think this could make sense to them. However that then opens them up to the problems of the 'incorrect' paperwork and correspondance issued to date in trying to claim the amounts due which all references PoFA in their demands and on the ticket itself!

Also moving on a step - membership of BPA , AOS , the Code of Practice and importantly I think , access to DVLA records, demands an INDEPENDANT Appeal Service be provided to the customer and given that they are denying access to POPLA they must fall foul here don't they? Unless of course they can provide the customer with access to ANOTHER independant appeal process maybe - can they do this and still satisfy the BPA / DVLA approval hurdle?

Thoughts please from the legal beagles on here .

Thanks

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Jlc
post Mon, 8 Jul 2013 - 13:51
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Need to see what the signs say.

If the land is subject to byelaws then it becomes a criminal matter and the ToC has to initiate the proceedings. (Or instruct someone on their behalf)

If issued under the railway byelaws then there is no 'automatic' RK liability but the RK will often be dragged to court. (And anecdotally often loses)

If it's purely private then they can't pick and choose the process to suit them. Failure to comply with the CoP needs reporting to the BPA Ltd.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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nigelbb
post Mon, 8 Jul 2013 - 13:55
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Offering access to the second level of appeal at POPLA is obligatory for members of BPA Ltd & it's irrelevant whether they are using POFA or not. For a variety of reasons PPCs sometimes go 'old school' & chase the driver & don't bother with the keeper e.g. a delay in getting driver details from the DVLA prevents them serving a compliant NTK. Whether POFA is invoked or not the PPC must provide access to POPLA if they refuse an appeal.

If there really are statutory controls on the land then the correct course of action for the PPC is to use the railways bylaws for enforcement. However using railway bylaws is no good for the PPC business model as they get no revenue if the motorist is fined in the magistrates court.

This post has been edited by nigelbb: Mon, 8 Jul 2013 - 13:56


--------------------
British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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kirkbyinfurnessl...
post Mon, 8 Jul 2013 - 13:58
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If you give me the station name by pm I cam find out wheather bylaws apply or not

This post has been edited by kirkbyinfurnesslad: Mon, 8 Jul 2013 - 20:30


--------------------
www.parkingticketappeals.org.uk
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matt285
post Mon, 8 Jul 2013 - 15:51
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QUOTE (prjohnsonnn @ Mon, 8 Jul 2013 - 14:32) *
Thanks for the responses so far .

Just had some more thought on this - I suspect that their stance here will be that it is a contractual issue (not a penalty etc under some byelaw) and that terms and conditions are what is referred to on the signs and that the amounts being demanded are for a breach of these etc etc . OK I get that , however, they are then saying that because the land has some other statutory oversight impacting it by way of railway byelaws (even though they arent pursuing the tickets as a byelaw issue) then this is sufficient to exclude it from PoFa as per 4.1 = see below .


Be that as it may - it will in the end depend on what the signs say... (again).

If the signs say its a private contract matter then they will not be able to use the railway byelaws. And what benefit would they have from distancing themselves from POFA? In the end this means they will be unable to chase the RK and have to find the driver - unless you have confirmed to them that you were the driver?

And as rightly pointed out, POPLA hasn't got anything to do with the POFA as such, so it is indeed not mandatory - however if the PPC talks about "mitigation of costs" then this is BS.
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nigelbb
post Mon, 8 Jul 2013 - 17:27
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POPLA is mandatory for compliance with the CoP. Members of BPA Ltd are obliged to offer this "independent" appeals service.


--------------------
British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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roythebus
post Mon, 8 Jul 2013 - 17:58
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I would suggest that IF railway bye-laws are in force on that land then a PPC CAN act on behalf of the TOC (train operating company) as laid down in the bye-laws. However, they get diddly squat as nigelbb says above. The magistrates court get the fine!
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prjohnsonnn
post Mon, 8 Jul 2013 - 20:13
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No - I think what they are doing interestingly is using both of the forums here and have tried to pick their way through to have the best of both worlds but have blundered:

1 - they are levying a parking charge based on breach of contract as per the 'terms and conditions' on the signage and their evidence pack at the POPLA hearing that they submitted was specifically stating that they were seeking 'liquidated damges for breach' . ( Pls note that they lost based on my contention that these were not a reasonable pre estimate of loss)

2 - they are doing this on land which they state is 'subject to railway byelaws' (which we are checking but i have no reason at this time to doubt) BUT note that they are NOT using these byelaws to levy 'fines. As such this 'byelaw' land is therefore outside the scope of Schedule 4 PoFA - which i believe it IS checking thru the PoFA terms.

So unless there is some reason why they cant choose to enforce a 'contract' on this 'railway byelaw' land then i dont see why this isnt Ok on the face of it.

However, the point here of course is that based on the language on the tickets and letters and 'demands' they have been using it all refers to PoFA and so there is ample defence here to argue the tickets etc are all issued incorrectly i am sure. Also dont forget that by claiming the land is outside of PoFA they are also denying me and other customers the right to a POPLA appeal and therefore presumably are as a result in breach of the BPA CoP etc etc which requires them to make available an independant appeal process - which they arent doing. Also presumably by being non compliant with these Codes they are also falling foul of the DVLA requirement to enable them to access DVLA data? is that correct ?

This is how is see this situation - i have kind of worked it through today in my head - and I havent heard of a PPC doing this before.

Perhaps someone else can comment and see if my summation is correct of what they are doing here

Thanks
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Broadsword
post Mon, 8 Jul 2013 - 20:25
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QUOTE (prjohnsonnn @ Mon, 8 Jul 2013 - 21:13) *
So unless there is some reason why they cant choose to enforce a 'contract' on this 'railway byelaw' land then i dont see why this isnt Ok on the face of it.


JPM321 has an email warning that the DVLA gave to the BPA Ltd last year that prohibited such 'flipping' of methods of enforcement at Railway Station car parks. They were told, choose which method you are going to enforce under and stick with it or else.
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matt285
post Mon, 8 Jul 2013 - 21:29
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QUOTE (Broadsword @ Mon, 8 Jul 2013 - 21:25) *
JPM321 has an email warning that the DVLA gave to the BPA Ltd last year that prohibited such 'flipping' of methods of enforcement at Railway Station car parks. They were told, choose which method you are going to enforce under and stick with it or else.


I think what they were told was "whatever it says on the signs is binding on you". I think it also mentioned that the PPC would be able to change the signs accordingly and thus "flip" a private contract car park to a byelaw car park. But obviously once a PCN is incurred the relevant method is set in stone.

I'm still wondering whether they have thought through what they sent to you...
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prjohnsonnn
post Mon, 8 Jul 2013 - 21:48
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The signage at the car park is basuically a carbon copy of this one that i saw posted a while back on another thread. it just mentions Railways byelaws once in the second line. Nowhere else - my view is that they are issuing the tickets as a contractual term and then just including reference to railway byelaws as a fail safe somewhere else in the signage.

when you say you wonder if they have thought it through do you mean you think they have dropped a clanger here - my view is they have indded done so big time given all the previous correspondance they have been issuing references PoFA
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bama
post Mon, 8 Jul 2013 - 21:52
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QUOTE
I'm still wondering whether they have thought through what they sent to you...

ROFL


--------------------
Which facts in any situation or problem are “essential” and what makes them “essential”? If the “essential” facts are said to depend on the principles involved, then the whole business, all too obviously, goes right around in a circle. In the light of one principle or set of principles, one bunch of facts will be the “essential” ones; in the light of another principle or set of principles, a different bunch of facts will be “essential.” In order to settle on the right facts you first have to pick your principles, although the whole point of finding the facts was to indicate which principles apply.

Note that I am not legally qualified and any and all statements made are "Reserved". Liability for application lies with the reader.
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anon45
post Mon, 8 Jul 2013 - 22:18
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Technically, all railway land is subject to byelaw 14 (and all other railway byelaws), and PPCs have no authority to waive or vary the byelaws. Signage might well mention 'parking is subject to byelaw 14; failure to observe conditions is an offence', and be technically correct, but this does not necessarily mean that any actual enforcement takes place at that station as prosecutions under byelaw 14.

As per the sticky: http://forums.pepipoo.com/index.php?showtopic=46975
QUOTE (Fredd)
It's possible for parking tickets at some airports, train stations, ports and other locations to be issued under Byelaws, which would be enforced through the Magistrates Courts. However this is very unusual, and the vast majority of parking tickets that mention Byelaws are actually issued by PPCs relying on contract law.


Even if it claims to be a 'byelaw 14' ticket, in all probability the claim would be false (if not fraudulent) in an attempt to scare people into paying an unenforceable invoice. I've never heard of any PPC prosecuting under byelaw 14; they probably don't have the expertise to bring a private prosecution, and they have no financial incentive to do so, since any revenue from court fines would be retained by the State.

In short, I am in partial disagreement with other posters in that I do not believe that the signage is definitive in determining whether or not a PPC invoice is a 'genuine byelaw ticket', and, that, if it is issued by a PPC, it is almost certainly not a genuine byelaw ticket, and one to which RK liability does not apply, since parking on railway land remains technically subject to statutory authority.

I understand from another thread (which I cannot currently locate) that POPLA does not currently handle appeals for parking on land subject to statutory authority, so the PPC may be telling at least part of the truth in that respect. However, the OP appears to suggest that this is no longer the case.

I certainly wouldn't pay the invoices if I were in the OP's position, since the chances of being taken to any court of any description (whether magistrates or county) for failure to pay are very remote indeed, and he or she would probably have a strong defence in either case.

This post has been edited by anon45: Mon, 8 Jul 2013 - 22:25
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