NSL appeal change from 'owner' to 'driver'!

Boredtog

Afternoon all,

My wife recently received a Parking Charge notice NTK from NSL for an alleged parking violation at Stansted airport. She wasn't driving the car at the time of the alleged incident, so she has appealed stating that the location is not relevant land under PoFA 2012 and therefore she is not liable, etc., etc. (thanks to all the amazing info on both this forum and Pepipoo. Special thanks to Coupon-mad for such a huge sharing of info/advice!)

We went through the appeals webform together and she made sure to select 'owner' under the 'vehicle status user' drop down (this is a mandatory field on the web form but I understand that this is a breach of BPA Codes of Practice in itself... but more on that later).

However, when she clicked submit to lodge the appeal and downloaded a copy of it, the user status had been changed to 'driver'! Thankfully, we took screenshots the whole way along, showing that she selected 'owner' and made it clear in the appeal free text section that she was only the keeper of the vehicle, not the driver. Do we need to worry about this then? Should we follow this up with NSL or is it minor enough to leave, as it was made clear she is just the keeper further down the form and that we have the screenshots?

On a separate note, we are also drafting a complaint to BPA using the three arguments laid out in the POPLA NSL Stansted airport thread (Sorry, I can't post links yet!) using the wording by coupon-mad on page 2 and referencing the previous identical complaint made by johnnypjr on that same thread.

Does anyone know the specific section of the BPA CoP that deals with the issue of not needing to identify yourself as either owner/keeper/driver when submitting an appeal? We've had a good scan through, but nothing obvious is jumping out and we want to make sure the complaint sounds right before sending it off.

We'll also be adding the fact that the vehicle user status was magically changed after submission!

Thanks in advance for any advice on this.

Just FYI, redacted copies of the parking charge notice are here:

(As I can't post links, just suffix https:// to the following)
ibb.co/Sx31drv
ibb.co/0c7Fm8L

The appeal read as follows:

The above Parking Charge Notice was issued on [redacted] for an alleged offence on Wednesday [redacted]. I, the registered keeper, received the PCN by post no earlier than [redacted]. The documented contravention was ‘Parking in a restricted location during prescribed hours’ at Stansted Airport. I was not the driver of the vehicle and appeal for the following reason:

The location appears to be not relevant land as defined by paragraph 3 of Schedule 4 of The Protection Of Freedoms Act 2012, being subject to byelaw control. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

Even if it were relevant land you have also failed to give the invitation to keeper required by 9 (2) (e) of POFA and, again, I cannot be held liable.

There is no legal requirement to name the driver at the time and I will not be doing so.

Any further communication with me on this matter, apart from confirmation of no further action and my details being removed from your records, will be considered vexatious and harassment. This includes communication from any Debt Collection companies you care to instruct.

Coupon-mad

To make a complaint to the BPA nowadays, the new process is you must exhaust the PPC's complaints procedure first.

So complain to NCP about all of it.

Including your screenshots and tell them you will show this to your MP, Trading Standards and the BPA.

Does anyone know the specific section of the BPA CoP that deals with the issue of not needing to identify yourself as either owner/keeper/driver when submitting an appeal? 

There isn't.  It comes officially from the DVLA:

https://forums.moneysavingexpert.com/discussion/comment/72896659/#Comment_72896659

It is an absolute ban.

Umkomaas

NtK
https://ibb.co/Sx31drv
https://ibb.co/0c7Fm8L

So complain to NCP about all of it.

@Coupon-mad - it's NSL.  I thought the BPA told them they mustn't attempt to use PoFA any further for London Stansted.  Maybe too recently for it to have impacted the above NtK?  The date of issue on the NtK will be important in ascertaining whether NSL are complying, or ignoring and continuing to chance their arm in snagging the unwary. 

@Boredtog, can you tell us what the Date of Issue is please?

1505grandad

Can you clarify the full name of the ppc please.

Boredtog

Umkomaas said:

So complain to NCP about all of it.

@Coupon-mad - it's NSL.  I thought the BPA told them they mustn't attempt to use PoFA any further for London Stansted.  Maybe too recently for it to have impacted the above NtK?  The date of issue on the NtK will be important in ascertaining whether NSL are complying, or ignoring and continuing to chance their arm in snagging the unwary. 

@Boredtog, can you tell us what the Date of Issue is please?

Coupon Mad thanks for the info and Umkomaas, apologies for the lack of response but one thing led to another and time got away from me!

However, the company issuing the PCN was NSL Ltd part of Marston holdings. The contravention allegedly took place on 31/05/2023 and the NTK issued on 05/06/2023.

In the meantime, my appeal to NSL was knocked back and so I submitted a POPLA appeal using loads of info from here and on the Newbies thread.

That appeal read as follows:

 POPLA Ref **********

NSL Parking PCN no *************

A notice to keeper was issued on 05/06/2023 and received by me, the registered keeper of ******* no earlier than Thursday 8TH JUNE 2023 for an alleged contravention of ‘PARKED IN A RESTRICTED LOCATION DURING PRESCRIBED HOURS’ at Stansted Airport. My appeal to operator NSL part Martson holdings (herein after referred to as NSL) was submitted and ultimately rejected by an email dated 23rd June 2023. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds: 

1) NSL 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) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150) 

6) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103) 

7) Misleading and unclear signage 

8) No landowner contract nor legal standing to form contracts or charge drivers 

9) Invalidity of Photo evidence 

10) No Grace Period Given (Clause #13 BPA Code of Practice) 

1) From their rejection of my initial appeal, it appears that NSL are attempting to claim the charge is liable to them under airport byelaws. I reject this and put them strictly to proof on which byelaw 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 not 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 ns`l 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. 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. 

5) Airport land is not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws. POPLA assessor Steve Macallan found in 6062356150 in September 2016, that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012. ‘As the site is not located on ‘relevant land’, the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal.’ 

6) 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." The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 5 above. 

7) The alleged contravention, according to NSL, is a’ breach of the terms and conditions which were clearly and prominently displayed on the signage'. It would however appear that signage at this location does 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." 

8) 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 any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, NSL’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 to demonstrate their legal ownership of the land to POPLA. I contend that NSL 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 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 to prove otherwise so I require that NSL 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 and the owner/occupier, containing nothing that NSL can lawfully use in their own name as a mere agent, that could impact on a third party customer. 

9) I would also bring into question the validity of the photographs taken of the alleged contravention – most notably that only the Vehicle Registration Mark (VRM) is shown in the images. There is no time or location data included with the image, simply an extreme close up shot of the VRM. This image could have been taken anywhere and in no way proves that the vehicle was anywhere near the location alleged. 

10) 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'. 

11) Given the above points of ambiguous signage, not facing the driving direction, including mixed fonts and images, it is unreasonable to expect a driver to be able to read the entire signage whilst driving. Therefore, if a driver stops for a brief moment to read a sign, they MUST have the opportunity to leave and not accept the terms of an alleged ‘contract’. A few seconds I would say does not constitute a fair grace period and therefore NSL is in breach of the BPA Code of Practice. 

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

Boredtog

NSL have since provided 14 documents, chiefly CCTV of the vehicle sat at the location (which doesn't show anyone entering or exiting the vehicle), a letter of authority from the surface access manager at Stansted Airport (ibb.co/QrTGXpZ), photos of various signs around the airport (this being the one listed as being at the alleged location ibb.co/rxbBKgj) and a power point presentation showing google maps satellite images of where the signs are located. Their free text also states the following: (I still can't post links, so please prefix https:// to those links)

Their free text also states the following:

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. As the above vehicle came to a halt without a valid external reason including traffic or pedestrians walking the vehicle is said to have parked and as such is subject to the parking restrictions in place. Parking is not permitted where the above vehicle was observed via CCTV capture irrespective of duration. 

Whilst we appreciate the circumstances described we are unable to accept them as a valid reason to cancel the above PCN. It is the responsibility of the driver to be aware of and to adhere to the relevant signage, or to seek alternative parking arrangements to ensure the vehicle is parked without contravening the restrictions in force. In respect to the comments regarding the Protection of Freedoms Act 2012 and the Notice to Keeper, we must advise the keeper that the act 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. 

Furthermore, the Notice to Keeper meets all the requirements of the Protection of Freedoms Act and those of the British Parking Association ’s AOS. We note the keeper has advised someone else was driving the above vehicle however to transfer liability for the PCN to that person they must provide their full details; alternatively, if they choose not to then as previously mentioned the liability remains with the vehicles’ registered keeper. 

We have noted the comments however, as Stansted Airport is privately owned, all PCNs are issued in accordance with the Protection of Freedoms Act and in line with the British Parking Association Approved Operator Scheme Code of Practice. By parking on this land, all drivers are agreeing to acknowledge, and park in accordance with the parking restrictions stated on signage around the area. 

We have noted the request to have data deleted in line with the requirements of the General Data Protection Regulations, as the above notice remains ‘in process’ in our secure contact management system NSL Ltd and Manchester Airport Group have a valid reason to retain the data and will continue to do so. Once a PCN has been closed the data is stored for up to 2 years after that point to ensure we have adequate records on file to manage any governmental or tribunal data request requirements. Following this, the data is automatically removed from our system. 

As the keeper has not provided any mitigating circumstances to explain why the vehicle was parked at the above location against the restrictions in place, we am unable to consider this matter further. There is signage in place at this location informing motorists of the restrictions in place. We can confirm that sufficient signage is in place and that it meets statutory/BPA AOS requirements. We have inserted below examples of the signage in place across the airport roadways: 

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.

Boredtog

The following is my draft rebuttal and I would really appreciate anyone’s advice on it:

Dear POPLA Assessor,

I have received and assessed the evidence pack provided by NSL Ltd and, further to my initial submission, make the following arguments in rebuttal:

NSL Ltd state ‘As the above vehicle came to a halt without a valid external reason including traffic or pedestrians walking the vehicle is said to have parked and as such is subject to the parking restrictions in place.’. 

The signs entered in to evidence by NSL Ltd as being present at the location specifically state ‘No Stopping No Waiting at any time to drop off/pick up’. The signs make no mention of a restriction in stopping or waiting for any reason other than to drop off or pick up and no inference can be drawn as to any other interpretation of the sign’s definitive wording. NSL Ltd have not provided any evidence that anyone entered or exited the vehicle, to show that any person was dropped off or picked up at the location. As such, there is no evidence of any contravention of submitted signage.

With further consideration to this statement and in conjunction with the following, that NSL Ltd later go on to state, ‘By parking on this land, all drivers are agreeing to acknowledge, and park in accordance with the parking restrictions stated on signage around the area’.

However, in order for a driver to fully acknowledge the terms of any parking restrictions, they must be allowed to fully read any and all terms listed on the signs. The photo of sign entered in to evidence by NSL Ltd as ‘Sign+Photo+1.jpg’, shows a large amount of ’small print’ to the bottom of the sign. It is impossible to read any of the small print text on this high resolution digital image, whilst sitting stationary in front of a computer. As such, it would be equally impossible to read it at distance from a moving vehicle. The BPA code of Practice states drivers must be given time to read and understand and agree or disagree to a contract. Stopping to do this does not mean anyone has agreed to a contract.

NSL Ltd state ‘In respect to the comments regarding the Protection of Freedoms Act 2012 and the Notice to Keeper, we must advise the keeper that the act 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’. 

This is demonstrably incorrect. As previously stated, this is airport land that is not 'relevant land', as defined by PoFA 2012, as it is already covered by statutory bylaws and is specifically excluded from 'keeper liability' under Schedule 4 of the Act. This has been confirmed by POPLA assessor Steve Macallan in case 6062356150 in September 2016. As such, Keeper liability does not apply here and, as Registered Keeper of the vehicle, I continue to exercise my right to withhold the identity of the driver without fear of prosecution myself.

NSL state ‘Furthermore, the Notice to Keeper meets all the requirements of the Protection of Freedoms Act and those of the British Parking Association ’s AOS’.

This is also incorrect, as listed in Points 4 and 5 of my original submission, which show that NSL Ltd have breached the BPA’s Codes of Practice in various regards.

Due to all of the points above and those already provided in my initial submission, it is respectfully requested that this appeal is upheld and the Parking Charge Notice dismissed.

********** End of Draft Rebuttal ************

Is that enough or is there anything else I can add?

With regards the letter of authority from the airport, is there anything to be made of the wording ‘NSL are contracted[…] For all designated airport roads’ but then goes on to say ‘Therefore I’d like to inform you[…] on airport operated non-designated roads’

Huge thanks in advance for any advice you can give

B789

The point about PoFA should be your primary argument, nott buried towards the end of your rebuttal.

Boredtog

B789 said:

The point about PoFA should be your primary argument, nott buried towards the end of your rebuttal.

Yeh, I had considered putting it first but then decided to run the arguments chronologically as per NSL's response, but you're right. I'll amend it and put the PoFA bit first. Cheers

Coupon-mad

Boredtog said:

B789 said:

The point about PoFA should be your primary argument, nott buried towards the end of your rebuttal.

Yeh, I had considered putting it first but then decided to run the arguments chronologically as per NSL's response, but you're right. I'll amend it and put the PoFA bit first. Cheers

Don't send it yet!

We wrote a Stansted POPLA rebuttal yesterday - search the forum for the keywords:  POPLA Coach & change to NEWEST. 

Boredtog

Coupon-mad said:

Boredtog said:

B789 said:

The point about PoFA should be your primary argument, nott buried towards the end of your rebuttal.

Yeh, I had considered putting it first but then decided to run the arguments chronologically as per NSL's response, but you're right. I'll amend it and put the PoFA bit first. Cheers

Don't send it yet!

We wrote a Stansted POPLA rebuttal yesterday - search the forum for the keywords:  POPLA Coach & change to NEWEST. 

Thanks so much Coupon-mad!

So should I just copy and paste the email from the POPLA coach and disregard the rest of my draft rebuttal points above or should I add the other points in anyway?

Also, would I need to name the POPLA coach who wrote that email, as the name is redacted in the post. Should I just name John Gallagher, the lead adjudicator?

Thanks again