NTK from MET Parking Services - Southgate Park - Stansted - CM24 1PY

BigMacNoFinePlease

Hi all,

I'm guessing most of you know this car park. Parked in front of Starbucks and visited both McD and Starbucks (can prove from CC statements). Left within an hour.

"Date of contravention" 04/12/2022
Date of issue of this notice 19/12/2022
I received the notice 28/12/2022 which I believe is outside the 14 days for NTK though they do not refer PoFA, they have longer in this case, right?

I have not appealed or reacted in any way.

The picture in the notice is showing 2 cars (neither is mine) and 2 people walking towards McD. The letter says "photographic evidence may be reviewed" at their website. I have not visited it in case they track it.

I am contemplating between ignoring the notice or appealing. Another forum suggests ignoring. I believe users on MSE and the guides suggest appealing with the template. I'd like to understand which one is better approach (and why?) or if both can work but are just different routes to the same resolution?

I am also thinking about contacting Starbucks and telling them about my experience and showing them proof of purchase. Thoughts?

Thank you

Umkomaas

Non PoFA compliant NtK [dates and wording from Sch 4 9(2)(f)]. Can be won - possibly at initial appeal, or almost certainly at POPLA stage. 

Use the blue text initial appeal template from the NEWBIES FAQ Announcement, first post, adding the following at the end of it. 

As your Parking Charge Notice does not comply with the requirements of the Protection of Freedoms Act 2012 (Schedule 4), you are, in law, unable to hold the registered keeper of the vehicle liable for the parking charge; I suggest therefore that you contact the driver. As there is no legal requirement placed on the registered keeper to identify the driver, I will not be doing so.

Coupon-mad

Easy as pie.

Just copy the 'non-POFA, so get lost' style appeal people have used on any thread where I've recently replied 'easy when you know how'.

Had one yesterday.  I do not have a link but I just saw it again on page one right now, so a little reading of today's posts by you, will find it.

BigMacNoFinePlease

Thank you, both!

@Umkomaas - as they don't refer to PoFa, my understanding now after more research is that they are not bound by the 14-day limit, right?

@Coupon-mad - I have read through dozens of threads now and I believe I found the right one.

In addition, I was thinking about writing to the CEO/manager of Starbucks, as the keeper of the vehicle, letting them know that the driver received this PCN, showing them the driver can show they visited Starbucks that day (from CC statement). Thoughts?

Just to confirm I got it correct, this is what I'll write to MET (i'll reword it a bit):

This is an appeal by the registered keeper - No driver details will be given. Please do NOT try the usual MET trick of asking for driver details in order to get around the fact your NTK does not comply with POFA. As there is no keeper liability then liability cannot flow from the driver to the keeper and thus is an auto win @ POPLA. Please therefore cancel the notice or issue a POPLA code where you will auto withdraw

Coupon-mad

No need to reword it.  Keeper cannot lose.

Umkomaas

Umkomaas - as they don't refer to PoFa, my understanding now after more research is that they are not bound by the 14-day limit, right?

In a nutshell. 

1505grandad

"I received the notice 28/12/2022 which I believe is outside the 14 days for NTK......."

".... letting them know that the driver received this PCN...."

As you (keeper) received ntk do not say that the driver received anything if you are relying on PoFA

BigMacNoFinePlease

1505grandad said:

"I received the notice 28/12/2022 which I believe is outside the 14 days for NTK......."

".... letting them know that the driver received this PCN...."

As you (keeper) received ntk do not say that the driver received anything if you are relying on PoFA

Yep, I realized that as soon as I sent but no edit option thank you, I agree

BigMacNoFinePlease

MET denied my appeal and I have a code for POPLA now. I have drafted my appeal combining+tweaking relevant sections from the previous templates found here and writing some of my own

Could someone take a look before I submit?

To note, for section 1, I've changed the term "issued" to "given" (compared to the template I found) as I believe issued is not the correct one to use there. If I'm reading the law correctly, the 14 days is relevant when counting when the notice is "given" (which includes the time it takes to post the notice which is 2 days) and not issued which is just the date.

Section 2 I've come up myself. If you feel it will work against me, please let me know.

I haven't edited 3-7 from the available templates (to save you the time). There maybe something in those though that may not suit my case. In case you spot any, please let me know.

Thank you in advance

---

1 - PCN validity and the relevant period.

 

The date of contravention on the PCN is 4th of December 2022.

The date of notice issue is 19th of December 2022.

 

According to POFA paragraph 4, sub-paragraph (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.”

 

In this case, the “relevant period” of 14 days begins on 5th of December 2022.

 

According to POFA paragraph 4, sub-paragraph (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”

 

In this case, the PCN was therefore “given” on 21st of December 2022 which is 16 days after the “relevant period” had started. As the PCN was not given within 14 days, the keeper cannot be held liable.

 

Applicable legislation that was referred to:

(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.

*link to the law. removed as can't post links*

 

2 – Appeal consideration by MET and the compliance of MET Parking Services

While drafting this reply to POPLA, I saw on POPLA’s website guidance related to the appeal which states “…might have looked for guidance from successful claims on other sites, however, using templates or copying and pasting text won't help your claim”. POPLA should hold MET Parking Services to the same standards. I appealed to MET Parking Services with legitimate claims to show their notice should be cancelled only to receive a template reply from them that did not address any of the legitimate claims in my appeal.

MET Parking Services keeps referring to their terms and conditions which are not in compliance with the law while ignoring the law and the content of the appeals when considering appeals to their notices. Based on the countless similar stories found online about MET Parking Services, including widely published news articles, it can be assumed MET Parking Services are very well aware of their own uncompliant practices but continue to practice them.

It should not be the individual’s responsibility to research the applicable law while MET Parking Services continues with their uncompliant ticket issuing. Companies such as MET Parking Services should be held accountable to repeated issue of uncompliant parking tickets.

3 - 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 Southgate Stansted 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.

4 - 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."


5 - 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 Starbucks/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.


6 - 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


7 - 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.

Coupon-mad

Looks good.

BigMacNoFinePlease

MET withdrew from POPLA

Thank you for your help