POPLA NSL Stansted Airport Drop off

Tezan23

Hi guys, can someone please help me with this PCN from NSL at stansted. NB: the vehicle in question was one that I was hiring to use for my work as an Uber driver.

Background:
On 06/10/2023 I received the following NTK from NSL stansted:


I appealed on their online portal (for the 'if I was the driver question' I put no) with the following:

To whom it may concern,

Reference: Parking Charge Notice xxxxxxxxx : Vehicle Registration xxxxxxx

I refer to the above-detailed Parking Charge Notice (“PCN”) issued to me by NSL Ltd as a Notice to Keeper. I confirm that as the hirer of this vehicle, I am its keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) and I write to formally challenge the validity of this PCN.

You will no doubt be familiar with the strict requirements of Schedule 4 of POFA to be followed in order for a parking operator to be able to invoke keeper liability for a Parking Charge. There are a number of reasons why NSL Ltd Notice to keeper did not comply with POFA; in order that you may understand why, I suggest that you carefully study the details of Paragraphs 13 and 14 of Schedule 4 in particular.

Given that NSL Ltd has forfeited its right to keeper liability, please confirm that you shall now cancel this charge. Alternatively, should you choose to reject my challenge, please provide me with details of the Independent Appeals Service (POPLA), their contact details and a unique POPLA appeal reference so that I may escalate the matter to POPLA.

Thank you for your cooperation and I look forward to receiving your response within the relevant timescales specified under the British Parking Association Ltd Code of Practice.

Then NSL replied with this: 

This where I am currently stuck and could do with any help I can get. Thank you

Umkomaas

Complaint to the DVLA that despite the BPA previously warning NSL about their incorrect use of the Protection of Freedoms Act 2012 (Schedule 4) on not relevant land (airport byelaws applying), they are attempting to mislead you that you are liable for the charge. 

ccrt@dvla.gov.uk (and) KADOEservice.support@dvla.gov.uk- send to both email addresses. 

Similar complaint to the BPA (use the complaints portal on their website).  @Coupon-mad will be especially interested in reading the fact that NSL are ignoring the law and the warnings that the BPA will have issued to them!

And start on your POPLA appeal - NEWBIES FAQ Announcement, third post - where you will win on the fact that no hire documents were forwarded, as well as ramming home the fact that an airport covered by byelaws is 'not relevant land' for the purposes of keeper liability under PoFA. 

Coupon-mad

I have a complaint ref from July, for this NSL complaint at the BPA (which Gemma has not closed, so it is still ongoing):

email

aos@britishparking.co.uk

Complaint ref: BPA-044007

Address it FTAO: Gemma Dorans

Say you want your complaint logged under the above ongoing unresolved complaint ref started by MSE poster 'Coupon-mad' and copy in the DVLA:

KADOEservice.support@dvla.gov.uk

and copy in the Stansted Airport Manager mentioned here:

https://www.stanstedcommuter.com/wp-content/uploads/2021/05/dn01921-recommencement-national-express-a9-service.pdf

Your complaint is that NSL are continuing to reference keeper liability and the POFA 2012 regarding PCNs issued at an airport, where neither keeper nor hirer liability applies. They are misleading consumers and POPLA.

Also do a POPLA appeal as hirer.

1505grandad

" NB: the vehicle in question was one that I was hiring to use for my work as an Uber driver."

"On 06/10/2023 I received the following NTK from NSL stansted:"

Just checking (if relevant) -  can a NtK (only) be issued to a hirer?  -  there are different conditions re POFA in the docs i.e. 28 days (NtK) 21 days (NtH). 

Also the BPA CoP Glossary differentiates between the two.

Tezan23

Thank you @Umkomaas @Coupon-mad for your help. I have sent and email to aos@britishparking.co.uk and cc'd the relevant people as per your instructions, lets see what they have to say in the coming future.

In regards to the popla appeal I am gonna look into it and see which is best template. any suggestions for my situation?

Thanks again.

Coupon-mad

Yes - search the forum for:

 NSL POPLA Coach

Tezan23

@Coupon-mad Little update - received following email reply from Gemma Dorans:

Tezan23

Been little busy recently with family and work hence haven't had much time to sort out my popla appeal.

Coupon-mad

Follow up KADOEservice.support@dvla.gov.uk because they CAN ban an AOS member who is misleading keepers about liability.  The DVLA need to investigate this more than the BPA do. BPA are weaker without Steve Clark, he'd have been all over this.

IMHO this serial conduct by NSL (after the POPLA Coach already confirmed the legal position) deserves a ban from KADOE access.

Tezan23

I had cc'd KADOEservice.support@dvla.gov.uk in the initial email complaint to AOS. are you saying I should do a new email to KADOEservice.support@dvla.gov.uk and what should I write in it. thanks

Coupon-mad

No, not a brand new email, of course, as they were already copied into your complaint.

I'm saying you just forward the chain back to them both (DVLA and the BPA) with the BPA's reply showing, and say:

Never mind the BPA dragging its heels on this for months, what exactly is the DVLA doing about this, given the facts that:

- the DVLA has previously consistently banned AOS members from KADOE access, for saying that the POFA and 'keeper liability' applies when it doesn't, and

 - there is no debate about this. The POFA is crystal clear:

3 (1) In this Schedule “relevant land” means any land (including land above or below ground level) other than—

(a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);

(b) a parking place which is provided or controlled by a traffic authority;

(c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

(3) For the purposes of sub-paragraph (1)(c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.

- the Department for Transport clarified in the official Guidance to this part of the POFA that keeper liability does not apply on byelaws land (Airports, Ports, Railways, etc.):

https://assets.publishing.service.gov.uk/media/5a79d6be40f0b670a8025ccb/guidance-unpaid-parking-charges.pdf

No other AOS member is attempting to use the POFA on non-relevant land.  Not APCOA, VCS, NCP, UKPPO nor any other. 

Just NSL and they are out of step and the law says they cannot do this. 

Clearly the DVLA want private operators to enforce airports and stations and they already are.  No operator has any problem operating there.  APCOA even issue Penalty Notices at stations. Others stick to Parking Charge Notices (non-POFA wording).

Even if the DVLA wants to imagine that in an ideal World based on what they seem to want, keeper liability should be 'bent' to suddenly apply, the fact is that it doesn't. The DFT state in the POFA Guidance in black and white that it doesn't.  If the DFT want to change this over a decade after POFA, it will require legislation, not 'changes by stealth' by giving the nod to their contacts at parking firms to suddenly pretend they can do what they like, and hoping no-one makes any noise.

There is noise.

This will reach the press if the DVLA are no longer consistent in suspending KADOE from operators who whinge that they 'want' to be able to use a law that does not apply. Legislate then, if the DFT want to change it! But this sort of anti-motorist 'pro-parking operator' rubbish goes completely against the Government's stance as well as being a DFT U-turn which doesn't look great with just months to go until a General Election.

Not only does moving the keeper liability goalposts not look great to voters, how will this look to the ICO?  A complaint will be made if the DVLA (without legislation) now try to retrospectively switch - or let recipients of keeper data switch - lawful basis for releasing/processing data, which on Airport land has always been provided for 'non-POFA' PCNs only.  It cannot now be released on a false premise that the keeper is liable (false, because the DFT themselves say the keeper is not).

The point here is, although the DVLA was not pulled up by the ICO last time they were investigated, it does not mean a U-turn relating to lawful release of keeper data would be acceptable: in a guidance document  that still applies, the ICO stated:

“If you find at a later date that your chosen [lawful] basis was actually inappropriate, it will be difficult to simply swap to a different one.” It added: “Retrospectively switching lawful basis is likely to be inherently unfair to the individual and lead to breaches of accountability and transparency requirements.”

What is needed from the DVLA is the consistent approach that saw operators and debt collectors suspended in 2012, for wrongly stating that keeper liability applied.  If this isn't forthcoming this complaint will be escalated to the ICO, and publicised.