NSL - Stansted Airport Parking Fine for Stopping - POPLA appeal stage.

rd8190

Hi, I'm now at appeal stage where NSL have uploaded their evidence (which seems very cut and paste) and need some help.

Unfortunately at the start I admitted to being driver but questioned validity of evidence. I've followed the Newbie thread as best I can but feel stuck now.

Any help will be greatly appreciated

Coupon-mad

There is a section about POPLA Comments stage in the NEWBIES thread third post.

Do they have evidence of stopping? Do they use a camera car?

rd8190

Yes they used a camera car and the image is very blurred, the ANPR has picked up the number plate. The timings however make no sense as this happened outside the car park and I have proof that I was in a car park (which I had paid for) prior to their footage. The ticket from the car park is time stamped. 

Coupon-mad

Did you supply that evidence of timings to POPLA? Too late to add in new evidence now.

rd8190

Yes I did below is what I sent in my initial appeal:

POPLA Ref 
NSL Parking PCN NO: 

A notice to keeper was issued on 20th June 2022 and received by me on 22nd June, an alleged contravention of ‘PARKING IN A RESTRICTED LOCATION DURING PRESCRIBED HOURS’’ at Stansted Airport. I am not the registered keeper of the vehicle, but I was the driver at the time the so called contravention may have taken place and would be grateful if you would please consider my appeal for the following reasons.

1) APCOA not using POFA 2012
2) Airport Act 1986
3) Amount demanded is a penalty
4) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
5) Misleading and unclear signage
6) No landowner contract nor legal standing to form contracts or charge drivers
7) Photo evidence appears doctored
8) No Grace Period Given (Clause #13 BPA Code of Practice)

 1)    From their rejection of my last appeal, it appears that NSL are attempting to claim the charge is liable to them under terms and conditions which are clearly and prominently displayed on signage. I reject this and put them strictly to proof on which legal term they claim is broken, and in any case, why this would result in an obligation to pay NSL.

2)    Airport byelaws do not apply to any road to which the public have access, as they are subject to road traffic enactments.

Airport Act 1986
65 Control of road traffic at designated airports
(1) Subject to the provisions of this section, the road traffic enactments shall apply in relation to roads which are within a designated airport but to which the public does not have access as they apply in relation to roads to which the public has access.

Both the Airport Act and Airport byelaws say that byelaws only apply to roads to which road traffic enactments do not apply

3)    Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had no time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

There is evidence to support this in the following which was provided by NSL:

Image of Vehicle Parking NSL - Signage need to stop and see

3) Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had no time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

4) If NSL want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and NSL have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that NSL have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA. Furthermore, the notice to keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on 2nd September 2016, and the notice to keeper was received 21 days later on 23rd September 2016.

The BPA code of practice also says '20.14 when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.

There is evidence to support this in the following with the Notice sent a full 67 days after the supposed contravention occurred, despite full and reasonable efforts made by which was provided by both the registered keeper and driver whose details were passed to NSL:

NTK 23rd June 2022

I’d like to add for full transparency that the initial notice was sent on the 11th April to NAME REMOVED, this was appealed by NAME REMOVED and revealed that at the time in question I was driving the car. NSL simply refused to cooperate. I have evidence to support this in form of the following:

 

-       Parking Chat 17.05.2022.6

-       

Where despite disclosure and on this occasion the keeper of the car engaged with NSL, there was a refusal to help and assist therefore in breaches of BPA Clause 2.12

 ...keeper liability for payment of parking charges. This means that if the driver of the vehicle is not known then the registered keeper may be liable to pay any valid parking charges.

And

9.1 you deal with drivers and other members of the public in a professional way, avoiding using aggressive or threatening language

The evidence above shows that NSL have been rude disconnecting chats (the only way you can contact them) without allowing either NAME REMOVED or NAME REMOVED to speak. Deliberately being unhelpful and calling us names when no profanity was used by me at any point. 

There is evidence to support this in the following:

-       Chat Log - Juliet - 17.05.22.1

-       Chat Log - Juliet - 17.05.22.2

-       Chat Log - Juliet - 17.05.22.3

-       Chat Log - Juliet - 17.05.22.4

-       Chat Log - Juliet - 17.05.22.5

And again here:

-       Chat Log - 24th June 13.54 – 1

-       Chat Log - 24th June 13.54 – 2

-       Chat Log - 24th June 13.54 – 3

 

9.5 You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious and sanctionable instance of non-compliance and may go to the Professional Conduct Panel

They have refused to discuss the appeal with the driver despite there being transfer of liability and then increased the charge despite the appeal pending on their website as of 25th May and their agents saying the opposite.

There is evidence to support this in the following: After approaching BPA, NSL reissued the notice but addressed it as Notice To Keeper, despite acknowledgment from Raj Dohel that he was a driver and not the keeper. The letter also did not allow a reduction which is mandatory as stated by BPA 28.6

28.6 If prompt payment is made (defined as 14 days from the issue of the parking charge notice) you must offer a reduced payment to reflect your reduced costs in collecting the charge. This reduction in cost must be by at least 40% of the full charge

However it clearly does not offer this as the it states charge is £100 reduced to £100 despite, being a new first notice and here is evidence to support this in the following:

NTK 23rd June 2022

 

5) The alleged contravention, according to NSL, is in 'breach of the terms and conditions of use of the Airport road infrastructure and signs are clearly displayed'. It would however appear that signage at this location do not comply with road traffic regulations or their permitted variations and as such are misleading - they are unable to be seen by a driver and certainly could not be read without stopping, and therefore do not comply with the BPA code of practice. NSL are required to show evidence to the contrary.

I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: "It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it."

 

There is evidence to support this in the following which was provided by NSL:

 Image of Vehicle Parking NSL - Signage need to stop and see

 As you can see, firstly the lines are clearly yellow, and the signs in the area in question are not clear and are placed in such a way you are unable to read them without stopping the car at which point you are in violation with their terms without having agreed to them. Furthermore, there was no parking, the lights are clearly on and at no point can you see any individuals out of the car. The image is also not clear of who’s vehicle this actually belongs to as the image is blurred.

 

This is also a breach of Breach of Clause 19.1 - as set By the British Parking Association BPA Code of Practice which states:

A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.

 

6) I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give NSL Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, NSL Ltd’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require NSL Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that NSL Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the landowner/occupier that entitles NSL Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to NSL Ltd to prove otherwise so I require that NSL Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between NSL Ltd and the owner/occupier, containing nothing that NSL Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

7) I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a white overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these white boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge (and already have done so) NSL to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge NSL that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data). Especially, as I have a paid for parking ticket which states that the vehicle was parked in the Short Stay Economy - Blue Zone at 5:39am on 7th April and did not leave until 14th April at approximately 5-6pm.

 

There is evidence to support this in the following:

 

Stansted Blue Car Park - PAid for Ticket

 

If I was in a car park at 5:39am, how could I possibly be contravening a parked in a restricted location at 5:42am as the doctored photographs state. As per below:

 

Nsl Doctored Image B&W

 

Image of Vehicle Parking NSL - Signage need to stop and see

 

An NSL employee even admitted on a web chat through the NSL appeals website that the above image was hard to read and that it could be an error and the evidence of that is below:

 

Agent Admission Number Plate Hard to Read 17.05.2022

 

This is in breach of Breach of Clause 21.5a - as set By the British Parking Association BPA Code of Practice which states:

21.5a When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.

I do question the validity of the photographs, everything in colour is blurred and the black and white photo could have been taken anywhere, and there is nothing to show that it has been taken where the alleged contravention has taken place.

 

8) As per section 13 of the BPA Code of Practice: 'You should allow the driver a reasonable 'grace period' in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.' Therefore, if a driver stops for a short period of time to read a sign, they must have the opportunity to leave and not accept the terms of an alleged 'contract'. As no length of time has been disclosed of the how long the parking contravention was, I would argue does not breach a fair 'grace period', and therefore NSL are in breach of the BPA Code of Practice.

I therefore request that POPLA uphold my appeal and cancel this PCN.

rd8190

This is the paid for parking ticket which I uploaded in my initial evidence  along with this photo they sent me on the NTK
 

Coupon-mad

Oh dear. This was 100% nailed on winnable by appealing as registered keeper only. 

None of your first points about the POFA/byelaws mean anything once a driver has been identified.

I had to REALLY hunt through that appeal to find this, and POPLA may not spot it:

Stansted Blue Car Park - Paid for Ticket
If I was in a car park at 5:39am, how could I possibly be contravening a parked in a restricted location at 5:42am as the doctored photographs state.

You will need to focus on that and point out that the operator has not rebutted your evidence that you were inside the car park and had taken a printed ticket by 5.39am and did not leave until days later, so their evidence of the car purportedly 'stopped' elsewhere, cannot be right.

The lines on their photo are also yellow, not red, so this is not properly marked as a no stopping zone and the PCN was not properly given.

rd8190

Coupon-mad said:

Oh dear. This was 100% nailed on winnable by appealing as registered keeper only. 

None of your first points about the POFA/byelaws mean anything once a driver has been identified.

I had to REALLY hunt through that appeal to find this, and POPLA may not spot it:

Stansted Blue Car Park - Paid for Ticket
If I was in a car park at 5:39am, how could I possibly be contravening a parked in a restricted location at 5:42am as the doctored photographs state.

You will need to focus on that and point out that the operator has not rebutted your evidence that you were inside the car park and had taken a printed ticket by 5.39am and did not leave until days later, so their evidence of the car purportedly 'stopped' elsewhere, cannot be right.

The lines on their photo are also yellow, not red, so this is not properly marked as a no stopping zone and the PCN was not properly given.

I know, hindsight is wonderful. The Keeper was my wife and red mist took over. I'll focus on this point and also the red lines. Fingers crossed it works out. Thanks for your help thus far