Some help with NSL parking, Stansted airport, please

SusanJP

Hi all,

I got a PCN in the post from NSL - parking in an unauthorised area. We pulled over on a double yellow to change driver on a clear road with no traffic, literally about 30 seconds! Pratts.

Anyway, I used all the advice on these forums, didn't admit to being the driver etc. NSL rejected me and so I went to POPLA. I used the template. Also added a couple of bits - like the photos not really proving anything. One photo is of my car in the distance and the number plate is nowhere near recognisable. The other is a close up of my car with the number plate visible but you can't see the road or any yellow lines, just a small bit of a field in one corner of the picture. Also added that they forced me to choose "Yes" or "No" to the "were you the driver" question before I could proceed on their site to lodge my application.

POPLA have now replied to me to say that NSL have provided extensive evidence and that I have 7 days to reply.

The evidence NSL provided is tons of photos of their signs in different parts of the airport, close ups of their signs etc. It looks like they've collected a bunch of photos that they just dump on POPLA (and the vehicle owner) in every case that's challenged. But there's no further evidence involving my car. Anyway, any suggestions for what I say to POPLA now?

This is what NSL's reply says (sorry about the lack of paras but that's how they provided it):

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 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 for evidence that the above vehicle was parked, we must advise that all evidence including the CCTV footage captured at the time is available through our web portal which the keeper accessed to submit an online appeal. 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.

SusanJP

Incidentally, this is one of the photos, partially obscured by foliage!

Coupon-mad

Please show us the PCN both sides (with your ID redacted but ALL DATES VISIBLE.

NSL have form for misleading POPLA about the PoFA/keeper liability at Stansted!

 Also added that they forced me to choose "Yes" or "No" to the "were you the driver" question before I could proceed on their site to lodge my application. 

Oh dear...and you answered that? What did you say?  Surely you DIDN'T agree to answer and didn't say you were the driver?

POPLA have now replied to me to say that NSL have provided extensive evidence and that I have 7 days to reply. 

OK so you are at POPLA stage already

SusanJP

Coupon-mad said:

 Also added that they forced me to choose "Yes" or "No" to the "were you the driver" question before I could proceed on their site to lodge my application. 

Oh dear...and you answered that? What did you say?  Surely you DIDN'T agree to answer and didn't say you were the driver?

I chose "No" to being the driver and then clarified in the copy that I was neither agreeing nor disagreeing but that I chose "no" only because I was unable to proceed with the appeal till I had answered the question.

I'll scan the PCN and add it shortly.

SusanJP

The front and back of the PCN as requested:

SusanJP

My submissions: 

[quote]I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.

Further, your use of a POFA NTK is misleading given this is an airport.

There will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require an explanation of the allegation and your evidence. You must include a close up actual photograph of the sign you contend was at the location on the material date as well as your images of the vehicle.

If the allegation concerns a PDT machine, the data supplied in response to this appeal must include the record of payments made - showing partial VRNs - and an explanation of the reason for the PCN, because your Notice does not explain it.

If the allegation involves an alleged overstay of minutes, your evidence must include the actual grace period agreed by the landowner.[/quote]

[quote]

POPLA Ref xxxxxxxxxxx
NSL Parking PCN no xxxxxxxxxx

A notice to keeper was issued on 26th June 2023 and received by me, the registered keeper of XXXXXXX on 29th June 2023 for an alleged contravention of ‘PARKED IN A RESTRICTED LOCATION DURING PRESCRIBED HOURS’’ at Stansted Airport. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) The photographs do not show a contravention, photo #1 shows just the registration plate, not the car. Photo #2 shows a car but not the car’s registration, photo #3 shows a car with this registration in a field somewhere and not in a restricted location. Further, photo #3 does not show “parking”. The car pulled over to change drivers and proceeded within about a minute.

I would 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 etc) are added as a black overlay box on-top of photo 2 in the upper left hand corner while the same details are imposed directly on the photo in photo 2 (not in a black box). It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black 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 NSL to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.) and ask for an explanation as to why one photo has this black box added and the other doesn’t. And why the car registration is not visible in photo 2.

2) NSL’s online appeal process illegally requires me to answer the question as to whether I was the driver of the vehicle and does not allow an appeal unless that compulsory field is answered thus forcing the public into taking a position on whether they were or were not the driver. This is entrapment/a sneaky attempt to force users to incriminate themselves / compromise their position.

3) NSL is not using the Protection of Freedoms Act 2012 (POFA) correctly / misquoting POFA 2012: NSL have claimed in their rejection that “POFA ...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 …”. They haven’t show they’ve met the requirements.

4) The sign they’ve provided says “No Stopping No Waiting At any time to drop off / pick up”.

There was no dropping off or picking up that happened in the case of this vehicle and NSL has not proven otherwise.

5) The 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.

6) 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, their 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.

7) The PCN correctly quotes 9(2)(b) of Schedule 4 of the Protection of Freedoms Act 2012 but goes on to make a misleading claim and says that “If you were not the driver at the time, you should tell us the name and current postal address of the driver”. That is not what 9(2)(b) of Schedule 4 says and NSL have provided no basis for their claim that I am required to provide the name and postal address of the driver. If I am not required to provide these details then NSL have no claim as they do not have the details of the driver.

8) 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.’

9) 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."

10) Paragraph 9(7) of Schedule 4 of the POFA says, “When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.” When the notice was served on me it did not come with any evidence. The photographic (claimed) “evidence” mentioned previously was not served with the notice and there was no information on the notice telling me where I could view the evidence. It was only in their appeal rejection letter that NSL explained how I could access this so called “evidence” online. NSL have failed to meet 9(7).

11) 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."

12. 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.

13. 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'. Approx 60 seconds, 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.

Name and address [/quote]

SusanJP

Sorry, I just noticed, the dates are not visible. I'll do it again if you need the dates (but, just to confirm, I was well within time).

Umkomaas

SusanJP said:

Sorry, I just noticed, the dates are not visible. I'll do it again if you need the dates (but, just to confirm, I was well within time).

The date of the 'parking' event and the Date of Issue on the Notice to Keeper shown above please. Complaints have already gone in to the BPA about NSL's false representation of their ability to transfer liability to the keeper at Stansted, so knowing your dates will help determine whether they/BPA are ignoring the situation. 

SusanJP

I'm not at the scanner at the moment, but these are the dates on the PCN:

Date of this Notice: 26/06/2023
Contravention Date: 22/06/2023
Contravention Time: 15:10

Coupon-mad

They have ignored the recent finding by POPLA's Coach as a result of a specific complaint that NSL continue to bare-facedly mislead POPLA about keeper liability on Airport land.

Here is the NSL case where the POPLA Coach has admitted that they got it wrong about 'relevant land' at Airports:

https://forums.moneysavingexpert.com/discussion/6402952/nsl-stanstead-airport/p5

Quote the entire email from the POPLA Coach from the other month and point out that two POPLA Assessors were fooled by NSL pretending that Airport Land is 'private land' - and it cannot happen again.  It is IMPOSSIBLE for the POFA to apply anywhere at Stansted Airport.  If the Assessor reading this is unsure and thinks that issuing a POFA NTK was OK at this location, they are plainly wrong in law and must refer this case to the POPLA Coach or Lead Adjudicator to prevent yet another POPLA error that will be shown to the DLUHC.

POPLA cannot say that a PoFA-worded PCN was properly given at an Airport site.  POPLA cannot say that the keeper is liable.  The POPLA Coach will explain if the Assessor thinks otherwise.

SusanJP

Thank you, Coupon-mad, that was very useful. Based on that I've completed my submission to Poplar. I shall update the forum on the outcome. If it's favourable, I'd be happy to share the Poplar code.