NSL Stanstead Airport

pathris

Hi there, 

I received POPLA response today stating my appeal was refused. I'll appreciate any tips on how to proceed: 

Attaching the operator  case summary first: 
1. Operator Case Summary

Thank you for the email concerning the above Parking Charge Notice (PCN) issued at Stansted Airport by NSL Ltd on behalf of Manchester Airport Group. The PCN was issued for the following contravention: Parked in a restricted location during prescribed hours. After careful consideration, we regret to inform the keeper that the PCN will not be cancelled on this occasion as the PCN was issued correctly. The driver has advised the vehicle was hired and that the PCN to hirer is not valid. Please be aware that we have not issued any notices to Xxxx LTD. The hire company would need to provide us with the information that the vehicle was on hire at the time that the PCN was served, then a new Notice to Keeper would have been issued to the nominated party. We must advise the keeper that the Protection of Freedoms Act 2012 covers the principle of ‘Keeper liability’ in specific circumstances, we believe that all those requirements have been met and the registered keeper of the above vehicle remains liable to Pay the Notice in line with the aforementioned Act as the applicable 3rd party’s details were not provided. A copy of the original challenge has been included as well as images and a video of the regulations being contravened. In conclusion, a full review of all the evidence regarding the issuing of the PCN has taken place, and, in light of the findings we are unwilling to cancel the Notice.

Please note I appealed as the hirer not the driver as it states above. 

2. POPLA Response: 

The appellant has raised the following points from their grounds of appeal • The requirements of Schedule 4 of PoFA 2012 were not met • It is not relevant land under PoFA • Misleading or unclear signage • No Grace period was given • The amount demanded is a penalty and not a parking charge The appellant has attached a pdf copy of the appeal grounds as evidence to support their appeal. The above evidence will be considered when making my determination. The appellant has provided a signed letter from LeasePlan UK Ltd giving them authority to represent the registered keeper as a third party.

Assessor supporting rational for decision

The driver has not been identified; therefore, I must see whether the operator has complied with the relevant sections of the Protection of Freedoms Act (PoFA) 2012 for them to transfer liability to the keeper. I have reviewed the PCN, and I am satisfied all sections have been met therefore, I am considering LeasePlan UK Ltd’s liability as the keeper of the vehicle. When entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. The operator has provided photographic evidence of the signage in place in the car park, which states: “Restricted ZONE…No stopping…No waiting”. The motorist is also advised that failure to comply with the terms and conditions will result in a PCN being issued for £100. The operator has provided video evidence of the vehicle parked within the restricted zone. When assessing an appeal POPLA considers if the parking operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park. The appellant has raised several grounds. As such I will address each area individually. • The requirements of Schedule 4 of PoFA 2012 were not met From the evidence provided in the operator’s case file, it is clear that the registered keeper of the vehicle is LeasePlan UK LTD. The Protection of Freedoms Act (PoFA) 2012, paragraph 4 (1) states “the creditor has the right to recover any unpaid parking charges from the keeper of the vehicle”. Section 13 (2) goes on to state that “the creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given – (a) A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement. (b) A copy of the hire agreement; and (c) A copy of a statement of liability signed by the hirer under that hire agreement.” These statements and agreements were not supplied to the parking operator and as such they hold the registered keeper liable under the terms of PoFA 2012. As noted earlier in this decision I am satisfied the relevant warnings and information were given and appropriate timescales applied. The PCN is PoFA compliant. • It is not relevant land under PoFA The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 7.1 of the BPA Code of Practice outlines that parking operators must have written authorisation from the landowner or their agent, to manage the land in question. This can come in the form of a witness statement under Section 23.16B of the BPA Code of Practice or a full contract. In this case the operator has provided a statement from the landowner, and I am satisfied this is relevant land and that NSL are authorised to manage and enforce parking regulations within it. • Misleading or unclear signage Section 19.3 of the Code says parking operators need to have signs that clearly set out the terms. In this case the parking operator’s evidence shows signs were placed around the site which I conclude adequately communicate the terms and conditions of use. I find that the signs are conspicuous and the working on them both readable and understanding. In this case motorist are informed they are within a restricted zone and that no stopping or waiting is permitted. • No Grace period was given Section 13.4 of the Code of Practice states that unauthorised motorists will not be entitled to the minimum time period of 5 minutes for a consideration period in spaces designated for specific users or where parking is not allowed. Section 13.3 explains a grace period can be given when a limited period of parking is permitted. With no period of parking permitted for any reason or any duration in this case, a grace period would not be applicable. • The amount demanded is a penalty and not a parking charge The fairness of parking charges was considered more broadly by the Supreme Court in the case of ParkingEye v Beavis [2015] UKSC 67. To conclude on whether the charge is fair, I must first look at what the Court said. The Court recognised that parking charges have all the characteristics of a penalty, but nevertheless were enforceable because there were legitimate interests in the charging of overstaying motorists: “In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss… deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract.” (paragraph 99). The Court did however make it clear that the parking charge must be proportionate: “None of this means that ParkingEye could charge overstayers whatever it liked. It could not charge a sum which would be out of all proportion to its interest or that of the landowner for whom it is providing the service.” (paragraph 100) It concluded that a charge in the region of £85 was proportionate, and it attached importance to the fact that the charge was prominently displayed in large lettering on the signage. The Court made it clear that the same considerations that means it was not a penalty also mean it is not unfair: “In our opinion, the same considerations which show that the £85 charge is not a penalty, demonstrate that it is not unfair for the purpose of the Regulations.” (paragraph 104). Based on this, I conclude the charge is appropriately prominent and in the region of £85 and is therefore not unfair. Having reviewed the evidence provided by both parties, I conclude that the driver was parked without authorisation within a restricted zone and therefore failed to adhere to the terms and conditions of use. As such the operator issued the PCN correctly. Accordingly, the appeal is refused.

Coupon-mad

It is an Airport! How can NSL have said Lease Plan UK are liable under the POFA on land that is clearly under statutory control (Airport byelaws)?

Complain to POPLA about this error.

Assessors must not EVER consider keeper liability under the POFA, when the location is an Airport or Railway!  This is a clear oversight and misunderstanding of where keeper liability applies and cannot apply, in law.

If LeasePlan UK are being pursued now, I think they'll have to transfer liability to you. To stop them getting letters and paying it.  Make sure they do that straight away while you complain to POPLA.  Specifically, what on earth does the Assessor mean by this:

"The PCN is PoFA compliant. • It is not relevant land under PoFA"

They have not considered the point that this is not 'relevant land' so it needs reassessing.  Where POPLA completely overlook a point, this MUST be looked at by another Assessor, so insist.

You could also complain to the BPA and DVLA that NSL have misled POPLA by saying the rk is being held liable under the POFA when this is Airport land.  AOS members must not mislead regarding liability. This is a serious breach.

Then (once the debt demands are coming to you, safely hooked away from the lease firm) ignore NSL.

 

pathris

Thank you, Coupon-mad!
LeasePlan UK have transferred the liability of this offence to me already. 

So the next step should be POPLA rebuttal based on "The PCN is PoFA compliant. • It is not relevant land under PoFA" as mentioned above? 

Also who shall I address my new appeal to for reassessing? On POPLA page it doesn't allow to submit further appeals, it sends you to Citizen's Advice B. or independent legal advisor. However I found one my old case where I went to Mr Gallagher - should I go this route again? 

Thanks, P.

KeithP

pathris said:

So the next step should be POPLA rebuttal based on "The PCN is PoFA compliant. • It is not relevant land under PoFA" as mentioned above? 

The point is that as this alleged transgression took place on land that is covered by byelaws, then PoFA doesn't apply at all. It is therefore of no relevance whether the PCN is 'PoFA compliant' or not.

As PoFA doesn't apply, there is no way that the parking company can transfer any driver's liability to the keeper.

Coupon-mad

Not POPLA rebuttal nor a further appeal. That's not what I said.  I clearly said do a complaint and told you what to say, word for word.

pathris

thank you, both!

best, P

pathris

Hi All, 

I received a response to my complaint, which is not the answer I was expecting. I'll appreciate any advice on what's next?
You'll notice the second point of my complaint is taken from another forum member who had similar case with NSL and he won based on this point entirely. HIs case ref relating to NSL Ltd Stansted Airport is BPA-033381. 

I am surprised to see that different assessors make completely different decision based on the same argument. 

"Thank you for your email, which was passed to me by the Lead Adjudicator, as I am responsible for responding to complaints about POPLA decisions.

 

I note from your correspondence that you are unhappy with the decision reached by the assessor in your appeal against NSL Limited.

 

Before I begin, I must explain that POPLA is an impartial and independent appeals service and we do not act either for the parking operator or the appellant. It is important to explain that POPLA is a one-stage process, and we would not change a decision because either party disputes the assessor’s decision. However, we may consider an appeal if there has been a procedural error, for example – if we failed to allow a motorist to comment on a parking operator’s evidence pack. My role as a complaints handler is to determine whether a procedural error has occurred during the assessment of your appeal.

 

Having read your complaint, I will address each point individually:

 

You state that this is an airport and airport land is not relevant land as it is already covered by statutory Byelaws which are excluded from keeper liability under the Protection of Freedoms Act (PoFA) 2012. You say therefore the keeper cannot be held liable and it is clear the assessor has misunderstood where keeper liability applies and cannot apply in law. You say due to this the appeal needs reassessing.

 

I can see from this case that the Parking Charge Notice (PCN) was issued at Stansted Airport and the reason for the issue was as the vehicle was observed parked in a restricted area during prescribed hours.

 

Whilst airports can have Byelaws in effect and will use them to issue a Penalty Notice to motorists who breach the rules and regulations of the agreement in place to park, in this instance the operator is not using the Byelaws to issue a Penalty Notice it is issuing a warning enforcement charge as shown on the signs which is a PCN using contract law in order to do so.  As such we do not need to consider the Byelaws in this instance as they are not being used to enforce parking upon this area of the land.

 

The assessor has considered this point within his assessment stating:

 

“Section 7.1 of the BPA Code of Practice outlines that parking operators must have written authorisation from the landowner or their agent, to manage the land in question.

This can come in the form of a witness statement under Section 23.16B of the BPA Code of Practice or a full contract. In this case the operator has provided a statement from the landowner, and I am satisfied this is relevant land and that NSL are authorised to manage and enforce parking regulations within it.”

 

The agreement stated the below:

6th March 2020

Driver and Vehicle Licensing Agency

Swansea 

SA99 1 AJ

Dear Sir/Madam

Stansted Airport Limited are the Airport Authority and Highways Authority  for all landside roads with the airport boundary. 

NSL Ltd are contracted to undertake all landside road enforcement on our behalf including the processing, issuing and management of Parking Charge Notices for all designated airport roads.

They commenced the parking enforcement for Stansted Airport Ltd as from April 1st 2020.

Therefore, I would like to inform you that I authorise NSL Ltd to obtain information via yourself regarding unauthorised vehicles dropping off/picking up/waiting on airport operated no -designated roads to allow the processing of Parking Charge Notices.  

 The assessor was satisfied that the operator had authorisation to issue manage and enforce parking on this land following its copy of the agreement between itself and the landowner. They were satisfied that it was relevant land in order for it to do so, however, I do believe the assessor could have explained this in more detail regarding the Byelaws point you made.

 

You state that the signs at this location does not comply with the road traffic regulations or their permitted variations as they are misleading and unable to be seen by the driver without stopping. You say they do no not comply with the British Parking Association (BPA) Code of Practice and the operator needs to evidence the contrary. You say the operator has not evidenced that any person or item was dropped off or picked up in this no stopping or waiting at any time to drop off or pick up zone. You say the driver stopped to read the signs, rejected them and left.

 

I acknowledge the points you have made regarding the signs, however, can see the assessor considered this within his report and were satisfied the signs were conspicuous and complied with the BPA Code of Practice in section 19.3. He said:

 

“I find that the signs are conspicuous and the working on them both readable and understanding. In this case motorist are informed they are within a restricted zone and that no stopping or waiting is permitted.”

 

The video provided by the operator shows that there was a sign within the vicinity of the vehicle and the operator provided several other images of the signs which the assessor was satisfied with. The assessor also discussed the point you made about time being granted to read the signs stating:

 

“With no period of parking permitted for any reason or any duration in this case, a grace period would not be applicable.”

 

Having reviewed his assessment, whilst I agree that no period of parking is permitted on this land so a consideration period to read the signs would not be granted, he has not addressed the point where you have mentioned about any action of picking up or dropping off. I apologise for this and will feed back to the assessor for coaching and decision-making accuracy purposes going forward, however, as stated the action of stopping or waiting for any period is not permitted and this includes the action of picking up or dropping off. Whilst the video evidence does not show someone or something being picked up or dropped off, the signs do not permit stopping or waiting.

 

Upon review of the decision reached for your appeal, I am satisfied that the correct outcome has been reached and that no procedural error has occurred. As stated above I will provide feedback to the assessor as I believe more detail was required in order to explain things further.

 

As POPLA is a one-stage process, there is no opportunity for you to appeal the decision.

 

In closing, I am sorry that your experience of using our service has not been positive. We have reached the end of our process and my response now concludes our complaints procedure. I trust you will appreciate that there will be no further review of your complaint and it will not be appropriate for us to respond to any further correspondence on this matter."

 

Yours sincerely,

 

Amy Smith

POPLA Complaints Team

 

Coupon-mad

Reply with this and copy in the BPA to this email:

AOS@britishparking.co.uk

Dear POPLA,

The BPA AOS investigations team (Gemma Dorans) is also copied in because this is a serious error and badly-timed failure by POPLA that I am advised the BPA will likely want to know about.

Astonishingly, given that the PoFA is over a decade old - and is the only piece of legislation POPLA Assessors need to understand - you don't understand it.

Your reply is legally wrong.

Your Lead Adjudicator and your Sector Expert need to personally review this case (see below for why they must look at this one).

This (below) from the Assessor and then repeated by you, is legally wrong:  

"I am satisfied this is relevant land".

In fact, it is IMPOSSIBLE for Airport land to be 'relevant land'.

The status of the land has precisely nothing to do with whether or not the operator chose to issue a 'parking charge notice' (contract law) or a 'penalty notice' under the byelaws.

Here is the law explained:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/9155/guidance-unpaid-parking-charges.pdf

Please read section 4.

You will see that the status of Airport land is not 'relevant land' (ever) whether or not an operator uses the byelaws.  Quite simply, 'keeper liability' under the POFA can never apply on Airport land.

You and the other Assessor are clearly confused, which is most surprising given the fact that Ombudsman Services have been operating POPLA for years.  Even the first iteration of POPLA (who used legally trained Assessors who would do a great job if LondonCouncils was still running it today) immediately understood that the difference is in the status of the land.

That non-POFA status is not dependent on, nor affected by, the type of notice issued.  However, the only types of parking contravention notice that can lawfully be issued on Airport land are the following:

(a) a penalty notice issued under byelaws, or

(b) a 'non-POFA' worded parking charge notice, which can only hold a driver liable.

You and the other Assessor are both erroneously saying that this operator can invoke the POFA.  This is a clear error (by both of you) exposing a serious gap in POPLA Assessors' understanding of the law.

If POPLA continue to fail to look at this issue properly and fail to demonstrate that its Leadership Team understand what is and isn't relevant land' (regardless of the type of notice issued) then the regular MSE forum poster Coupon-mad - who is known to be on the Government Steering Group regarding the new regulatory regime and statutory Code of Practice and is advising me - will personally take this evidence directly to the DLUHC this month.

Regretfully, this would highlight and suggest that POPLA is unfit for purpose if you don't know what you're doing regarding what is or is not 'relevant land'.  This is not something POPLA can afford to get so badly wrong this Spring, if they were hoping (as the last Annual Report suggested) to put themselves forward to run the new independent appeals service under the regulatory regime.

To be clear: we have no idea if POPLA is hoping that this will go out to tender or even if that is an option POPLA are planning on working towards.  However, this case would obviously be extremely damaging for POPLA if your Lead Adjudicator and Sector Expert fail to step in and confirm that the registered keeper company cannot and should not have been held out as liable, either by the operator or the Assessors.  

I expect to hear that this has been escalated within 3 days and to receive a substantive response and personal apology from the Lead Adjudicator (within no more than a further 7 calendar days) to put this significant failure right.

I hope POPLA can save your reputation and resolve my case with a swift apology and an action plan. Retraining is clearly required.

I would also welcome a response from the BPA and would point out that I made this appeal with the authority of the keeper, and as the appellant has remained the keeper (not me personally) it is not legally possible for NSL to pursue that company (because a company cannot be held liable for a 'parking charge notice' issued on Airport land).  Thus, I trust the BPA may see fit to suggest to their operator that this PCN should be cancelled regardless of POPLA's mistake.

yours sincerely,

xxxxxxxxxxx xxxxxx

pathris

Thank you so much, Coupon-mad for taking the time to write all this! lI really appreciate all your help and can't wait to send the response tomorrow morning. 

pathris

Hi there, 

Just an update on the above topic. 

I received a response from British parking not Sara Roberts, but Gemma: 

"Thank you for your email which has been passed to myself to review.

 I have logged your complaint under reference xxxxx and will investigate the matter with POPLA.  Please note POPLA are an independent appeals service and therefore we cannot become involved with their decision making.

 Furthermore, as we are not a regulatory body we are unable to compel a member to cancel a parking charge notice.  I will be in touch as soon as I have received a response from POPLA"

On a different note, the Lease Company wrote to me explaining they can't transfer liability as the parking operator doesn't allow them and they are now being chased. "The legislation surrounding private parking means that LeasePlan as the register keeper will be held liable for these charges if you don't take any actions" Is there any way out of this?