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POPLA Appeal - MET Parking Stansted
DevonFox
Posts: 4 Newbie
Hi All,
I appealed to MET using the template and I am now at the POPLA stage. I've copied parts from various threads on the forum.
I would appreciate it if someone could scan over what I have before I submit.
I just have a couple of queries:
- I'm not sure whether to include point 3: Insufficient evidence of the alleged contravention. The photos they provide appear to show the driver heading towards mcdonalds.
- Also I'm not sure whether I should add to my appeal the template regarding the signage as posted on the newbies thread. The reason being that the photos they provide show the driver looking at the sign. Even though this was just momentarily and the driver moved on after reading the line: "60 minutes free stay for southgate park customers while they remain on the premises only."
Thank you in advance
POPLA Verification Code: XXXXX
MET Parking Services PCN no: XXXXX
A notice to registered keeper was issued on xx July 2019 and received by myself, the registered keeper of ******* for the alleged contravention of ‘Breach of Terms and Conditions’’ at Southgate Park, Stansted. The notice states the reason “Vehicle left in Southgate Park car park without payment made for parking and occupants left Southgate Park premises.”
I am writing to you as the registered keeper and appealing as the registered keeper of the vehicle. I am writing my appeal with the following points in mind:
1) The PCN was not issued in the authorised time period (14 Days) and there was no Windscreen ticket issued in accordance with the conditions as per POFA.
2) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
3) Insufficient evidence of the alleged contravention.
4) The site boundary is not clear.
5) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
6) As per Consumer Rights Act 2015 Section 62 the contract terms and notices are not fair.
1) The PCN was not issued in the authorised time period (14 Days) and there was no Windscreen ticket issued in accordance with the conditions as per POFA Paragraph 4:
The date of contravention on the PCN is X June 2019. The date of notice issue is Xth July 2019, 40 days having elapsed, thus the keeper is not liable.
Conditions that must be met for purposes of paragraph 4
9 (4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
2) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
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 NTK.
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. They cannot.
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."
3) Insufficient evidence of the alleged contravention.
The evidence provided by MET Parking Services for the alleged breach of terms and conditions stated as left the premises are still photos. There is also no evidence that the supposed boundaries are shown on any signs or on a prominent map that drivers can see while on site, in order for them to make a reasonable decision as to what then might be considered 'off site'.
Even if a sign says a charge can be issued for 'leaving the site' this means nothing if 'the site' is not defined. This could include any number of shops, a cash point, toilets, cafe, drop-off areas, delivery area, the car park itself, rest area/benches and any other section of a retail park.
The fact that these photographs appear to overstep the mark of data protection - intruding on personal privacy of McDonalds patrons without their authorisation - is another matter that POPLA may wish to raise with the BPA and the Information Commissioner, given the current GDPR legislation.
Given some parking operators' modus operandi of handing anyone on site (landowners, local busybodies, shop workers, office workers) a camera and telling them they will pay a bounty for 'PCNs' issued, it cannot be assumed that the person who took the images is even a parking firm employee. Even if they are, this is still a random person with no DBS check clearance, taking photos not of cars and PCNs (as per their limited licence by the landowner) but of people and families going about their daily life. MET are then processing these people's personal images and sending those photos in the post, unsolicited, to a registered keeper of a car who may or may not know the persons in the photographs, who may be nothing to do with that vehicle at all.
4) The site boundary is not clear.
There are no legible markings distinguishing the boundary of Southgate Park. There is one entrance to the site by vehicle. How does one know that one has left the site? McDonald’s address (for the building in this area) is SouthgateStansted Airport, Southgate Rd, Bishop's Stortford CM24 1PY and Starbuck’s address is London Stansted Airport, Southgate Rd, Bishop's Stortford CM24 1PY, so any reasonable person would see that the parking area around McDonald’s building is Southgate Park.
In addition, McDonald’s offers a drive through service and the entry point into this would presumably (since there isn’t any boundary marking) be from Southgate Park.
There is only one entrance to the Southgate Park site. Leaving the site, to a reasonable person, would mean to leave the vehicle within this boundary and go to a place outside the boundary. A reasonable person would understand that this condition would be in place to stop people parking and possibly going to the airport. There isn’t any clearly defined boundary to show that one part of a carpark is different to another part of the car park.
5) 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 Parking Charge 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).
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:
7 Written authorisation of the landowner
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
6) As per Consumer Rights Act 2015 Section 62 the contract terms and notices are not fair.
The Consumer Rights Act 2015, Section 62 states that there is a requirement for contract terms and notices to be fair.
As it is not clear that there is a boundary between the different parts of the site, this is contrary to the CRA, as it "causes a significant imbalance in the parties; rights and obligations under the contract to the detriment of the consumer" and as such (1) An unfair term of a consumer contract is not binding on the consumer."
Due to the aforementioned stated reasons I therefore request that POPLA uphold my appeal and cancel this PCN.
I appealed to MET using the template and I am now at the POPLA stage. I've copied parts from various threads on the forum.
I would appreciate it if someone could scan over what I have before I submit.
I just have a couple of queries:
- I'm not sure whether to include point 3: Insufficient evidence of the alleged contravention. The photos they provide appear to show the driver heading towards mcdonalds.
- Also I'm not sure whether I should add to my appeal the template regarding the signage as posted on the newbies thread. The reason being that the photos they provide show the driver looking at the sign. Even though this was just momentarily and the driver moved on after reading the line: "60 minutes free stay for southgate park customers while they remain on the premises only."
Thank you in advance
POPLA Verification Code: XXXXX
MET Parking Services PCN no: XXXXX
A notice to registered keeper was issued on xx July 2019 and received by myself, the registered keeper of ******* for the alleged contravention of ‘Breach of Terms and Conditions’’ at Southgate Park, Stansted. The notice states the reason “Vehicle left in Southgate Park car park without payment made for parking and occupants left Southgate Park premises.”
I am writing to you as the registered keeper and appealing as the registered keeper of the vehicle. I am writing my appeal with the following points in mind:
1) The PCN was not issued in the authorised time period (14 Days) and there was no Windscreen ticket issued in accordance with the conditions as per POFA.
2) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
3) Insufficient evidence of the alleged contravention.
4) The site boundary is not clear.
5) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
6) As per Consumer Rights Act 2015 Section 62 the contract terms and notices are not fair.
1) The PCN was not issued in the authorised time period (14 Days) and there was no Windscreen ticket issued in accordance with the conditions as per POFA Paragraph 4:
The date of contravention on the PCN is X June 2019. The date of notice issue is Xth July 2019, 40 days having elapsed, thus the keeper is not liable.
Conditions that must be met for purposes of paragraph 4
9 (4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
2) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
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 NTK.
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. They cannot.
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."
3) Insufficient evidence of the alleged contravention.
The evidence provided by MET Parking Services for the alleged breach of terms and conditions stated as left the premises are still photos. There is also no evidence that the supposed boundaries are shown on any signs or on a prominent map that drivers can see while on site, in order for them to make a reasonable decision as to what then might be considered 'off site'.
Even if a sign says a charge can be issued for 'leaving the site' this means nothing if 'the site' is not defined. This could include any number of shops, a cash point, toilets, cafe, drop-off areas, delivery area, the car park itself, rest area/benches and any other section of a retail park.
The fact that these photographs appear to overstep the mark of data protection - intruding on personal privacy of McDonalds patrons without their authorisation - is another matter that POPLA may wish to raise with the BPA and the Information Commissioner, given the current GDPR legislation.
Given some parking operators' modus operandi of handing anyone on site (landowners, local busybodies, shop workers, office workers) a camera and telling them they will pay a bounty for 'PCNs' issued, it cannot be assumed that the person who took the images is even a parking firm employee. Even if they are, this is still a random person with no DBS check clearance, taking photos not of cars and PCNs (as per their limited licence by the landowner) but of people and families going about their daily life. MET are then processing these people's personal images and sending those photos in the post, unsolicited, to a registered keeper of a car who may or may not know the persons in the photographs, who may be nothing to do with that vehicle at all.
4) The site boundary is not clear.
There are no legible markings distinguishing the boundary of Southgate Park. There is one entrance to the site by vehicle. How does one know that one has left the site? McDonald’s address (for the building in this area) is SouthgateStansted Airport, Southgate Rd, Bishop's Stortford CM24 1PY and Starbuck’s address is London Stansted Airport, Southgate Rd, Bishop's Stortford CM24 1PY, so any reasonable person would see that the parking area around McDonald’s building is Southgate Park.
In addition, McDonald’s offers a drive through service and the entry point into this would presumably (since there isn’t any boundary marking) be from Southgate Park.
There is only one entrance to the Southgate Park site. Leaving the site, to a reasonable person, would mean to leave the vehicle within this boundary and go to a place outside the boundary. A reasonable person would understand that this condition would be in place to stop people parking and possibly going to the airport. There isn’t any clearly defined boundary to show that one part of a carpark is different to another part of the car park.
5) 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 Parking Charge 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).
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:
7 Written authorisation of the landowner
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
6) As per Consumer Rights Act 2015 Section 62 the contract terms and notices are not fair.
The Consumer Rights Act 2015, Section 62 states that there is a requirement for contract terms and notices to be fair.
As it is not clear that there is a boundary between the different parts of the site, this is contrary to the CRA, as it "causes a significant imbalance in the parties; rights and obligations under the contract to the detriment of the consumer" and as such (1) An unfair term of a consumer contract is not binding on the consumer."
Due to the aforementioned stated reasons I therefore request that POPLA uphold my appeal and cancel this PCN.
0
Comments
-
Before POPLA try a polite complaint to McDonald’s CEO stating how disappointed you are that your meal has attracted a £100 surcharge and that a cancellation would be very much appreciated.
paul.pomroy@uk.mcd.com0 -
Hi Egbert,
Thank you for your reply, Sorry for my late response, I went away last week and have only just returned. I sent a polite email off to the McDonald's CEO, do they usually reply and if so how long does it take?
Thank you0 -
I understand that Paul Pomroy is away until 1st September so your email might be sitting on his desk awaiting his return.
Check your spam in case you have missed a reply.
You can go to the MET payment screen to check the balance owed.
Don’t miss the POPLA deadline as you should win on POFA alone.0 -
Hi Egbert,
I got a response from McDonald's customer service team asking permission to pass my message onto the franchise owner. I've pasted the two emails below. Do you think I should give him permission to pass on my details?
I still have about a week until the POPLA deadline.
Thanks!
Hi **********,
I am writing further to your email to Paul Pomroy which he has passed for my attention.
Our Stansted restaurant is franchised to ***** ****** and as such he is responsible for all feedback of this nature relating to his business. I would be grateful if you could in turn give me your permission to pass your details to ***** and his team so someone can get back in touch with you.
I look forward to hearing from you soon.
Kind regards
***** *****
Team Leader
Customer Services Team
McDonald's UK Customer Services
11 - 59 High Road
East Finchley
London
N2 8AW
My Message:
Dear Mr Pomroy,
I'm sorry to bother you. I am a regular customer of McDonald's especially on long journeys. I enjoy the services you provide and have never felt the need to complain before.
On the 2nd of June the driver of my vehicle stopped off at the McDonald's at Southgate Park [Google map link removed]. It was a very busy day and there were a lot of police present, there was a promotion on. Unbeknown to the driver he had actually parked in the Starbucks side of the car park even though there are no clear boundaries . The driver was in McDonald's for around 20 minutes and then departed. A few weeks ago I received a parking charge notice from MET Parking Services the company which managed the car park demanding a £100 parking charge.
After a bit of research I have discovered a fair number of your customers have been caught out by this. I am very disappointed that the meal has attracted a £100 surcharge. This has not put me off McDonald's food as tomorrow on our travels my Brother and I look forward to trying the double quarter pounder with cheese meal. But in future when travelling by Car it will make me think twice about where I stop for refreshments.
I would be extremely appreciative if you could cancel this parking charge.
Kind regards, yours sincerely0 -
Team yes , MET no , make that clear in your reply
It's a complaint to the business , not MET0 -
Hello Egbert and Redx,
Thank you for your replies. Sorry for not replying sooner, I've been pretty busy this last year and didn't get around to it.
The Mcdonalds franchise owner wasn't able to resolve my issue so I submitted my appeal to POPLA. About a month later I received this email:Thank you for submitting your parking charge Appeal to POPLA.
An Appeal has been opened with the reference **************.
MET Parking Services - EW have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.
Yours sincerely
POPLA Team
A belated thank you for Egbert, RedX and all the contributors to the parking tickets and fines forum.
1 -
If the restaurant has a Facebook/TripAdvisor page you could "mention" this therein.
Nine times out of ten these tickets are scams, so consider complaining to your MP., it can cause the scammer extra costs and work, and in some cases, cancellation.
Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up,
Just as the clampers were finally closed down, so hopefully will many DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.
http://www.legislation.gov.uk/ukpga/2019/8/contents/of these Private Parking Companies.Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.
.You never know how far you can go until you go too far.0 -
Thanks for the update! MET often DNC good POPLA appeals. THeyre sensible1
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