NSL penalty notice Stansted Airport

gazzastears

Hi all,

This is the POPLA Complaint that has been compiled to send. Could anyone advise any changes that should be made to it, before it is submitted?

Thanks.

Parking charge notice: xxxx

The above parking charge notice (PCN) was issued on xxxx date for an alleged offence on the xxx date. I, the registered keeper, received the PCN by email on xxx date.   

The documented contravention was ‘Parking in a restricted location during prescribed hours’ at Stansted Airport. I was not the driver of the vehicle and would be very grateful if you would please uphold my appeal for the following reasons.
1) Not relevant Land under POFA 2012; no registered keeper liability and Airport Act 1986.
2) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012. The operator has not shown that the keeper is in fact the driver who was liable for the charge.
3) Misuse of DVLA data.
4) BPA code of practice also says 20.14 no ‘reasonable cause’ explained for requesting DVLA details.
5) Misleading and unclear signage and not seen so no contract entered into or formed.
6) No Grace Period Given (Clause #13 BPA Code of Practice).
7) The amount demanded is a penalty and not a Parking Charge.

1) Airport land is not 'relevant land' as it is already covered by statutory byelaws and is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. Therefore as the Registered Keeper I am not legally liable as this Act does not apply on this land. I put the Operator to strict proof so if they disagree with this point I would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by byelaws and/or other statutory instruments.

Furthermore, 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.

2) 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, the 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 the PCN issued so require them to evidence their compliance to POPLA.

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 Notice to Keeper.

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 I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge.

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.

3) To access the DVLA data, parking companies sign up to the Kadoe contract which allows the parking company to retrieve keeper data electronically for the reasonable cause of seeking recovery of unpaid parking charges. Kadoe contracts attach several conditions to the access including that the parking company seeks recovery from the driver or the keeper if the procedure in schedule 4 of the protection to freedoms act is used. The contract states data can only be used to enforce the ticket using Schedule 4 of POFA.

Hence if the parking company tries to claim liability against the keeper with no evidence to suggest they were the driver then the data would have been misused, If the keeper will not name the driver in circumstances where POFA can no longer apply then they would be breaching the act if they continue to process their data.

4) As mentioned above, in circumstances where the POFA can no longer apply then NSL will be breaching the Data Protection Act if they continue to process the data obtained from DVLA.

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) The alleged contravention, according to NSL, is in 'breach of the terms and conditions which were clearly and prominently displayed on the signage'. It appears that signage at this location does not comply with road traffic regulations or their permitted variations and, as such, are misleading, as they are unable to be seen and assimilated by a driver 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 safely read by a motorist without having to stop to look and read the signs. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it.'' 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.

There appear to be no readable or even visible detailed Terms and Conditions parking signs (Section 18.3 of the BPA Code of Practice), especially not from a moving vehicle.

6) 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.’

Given the above points of ambiguous signage, not facing the driving direction, including mixed fonts and images and lack of punctuation, 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.

7) The amount demanded is a penalty and not a Parking Charge.
The amount demanded is a penalty and is punitive and contravenes the Consumer Rights Act 2015. £100 is excessive given the very short period that the vehicle was stopped. The Parking Eye and Beavis case was characterised by clear and ample signage where the motorist had time to read and consider and also decide whether to accept or not. In this case signage is neither clear nor ample and the motorist has not time to read the signage or consider it as the charge was applied instantly the vehicle stopped.

I believe that the above points demonstrate that the claim made by NSL Ltd is invalid in a number of respects. I therefore request that POPLA uphold my appeal and cancel this PCN

 

cont........

gazzastears

cont.....

I would advise that I am aware that the BPA has a continuing investigation that is still ongoing, about a complaint that NSL (and only NSL) is issuing 'PoFA NTKs' on Airport land and is apparently misleading POPLA repeatedly.

The BPA's Gemma Dorans has confirmed the BPA is unhappy and is still investigating.  The complaint ref is BPA-044007 and if required I will also join this case into that complaint, if POPLA fail to allow my appeal.

To summarise:

It is in the public domain that NSL continues to mislead POPLA by submitting a POFA-worded NTKs even though Schedule 4 excludes land that is under statutory control (all Airports).

- NSL Stansted; error case one: 4823142005

A complaint was escalated in April to the POPLA Coach, who admitted that POPLA "got it wrong" about 'relevant land' at Airports and retraining was promised:

"Dear xx

Thank you for your email, which has been passed to me to investigate, in conjunction with John Gallagher, the Lead Adjudicator. Please accept my sincere apologies for the delay of this response.

The crux of your complaint is that the original assessment, and subsequent response to your initial complaint, incorrectly concluded that the parking operator was correct in pursuing the charge against the registered keeper, having transferred the liability in accordance with schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

I have taken the opportunity to review the case in its entirety, my findings are as follows:

In their original assessment, the assessor concluded that the identity of the driver had not been clearly established and therefore they considered whether the provisions of PoFA had been met in the parking operator’s attempt to transfer liability to the registered keeper. I can see from their report rationale that they considered the PCN to be PoFA complaint.

The assessor considered the appeal, not under byelaws, but under contract law based on the fact that the parking operator issued a parking charge notice, rather than a penalty charge notice. Further, in my view, the confirmation letter from the Landowner, addressed to the DVLA, stating they had contracted the parking operator to undertake road enforcement through the issue of parking charge notices, persuaded the assessor that the landside roads of the airport boundary were relevant land.

I disagree. I am satisfied that the Airports Act 1986 indicates that Stansted Airport Limited, as an Airport Authority and Highways Authority, fall under statutory control. This is key in making the determination over PoFA compliance.

As you correctly point out in your email, under section 3 of schedule 4 of PoFA, relevant land means any land other than land on which the parking of a vehicle is subject to statutory control. This effectively means that in this case, the parking operator may only pursue the driver of the vehicle.

Having reviewed both the appeal and your complaint, it is evident that a mis-assessment has occurred. The assessor, when reviewing the requirements of PoFA should have recognised that the airport roads were not relevant land and allowed the appeal. This is because the PCN failed the ‘PoFA test’.

Clearly we got this decision wrong, and I can only apologise for the undoubted inconvenience caused by the error. Thank you for bringing this to my attention.

I am sorry that your experience of using our service has not been as positive as we would have liked. However, I must point out that POPLA is a single stage, determinative process, and there is no recourse to reconsider the appeal, or change the outcome. That said, please be assured, I will use the learning from this case as part of our continuous improvement initiatives

Yours sincerely

xxxx

POPLA Coach "

- NSL Stansted; error case two: 4822223007

On 7th December (only last week) Bethany from the POPLA Complaints team responded to a similar complaint, promising a 'further extensive training course' due to this pattern of error:

"Dear xxxxx ,

Your complaint 

Thank you for your email. This has been passed to me as I am responsible for handling complaints.

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

As a part of your complaint, you have referred me to a previous case where a POPLA Coach apologised for our mis-assessment concerning Stansted Airport and keeper liability in accordance with schedule 4 of the Protection of Freedoms Act 2012 (PoFA). Your complaint concerns similar circumstances, whereby the assessor determined that the parking operator could pursue you, the registered keeper, for the PCN in accordance with PoFA.

I have completed a full review of your case and will address my findings below:

In the assessor’s rationale, they confirm they were not satisfied that the driver of the vehicle had been identified and subsequently concluded that the PCN complied with the provisions of PoFA. The assessor explained that they were not considering the appeal under byelaws, and I can see the appeal was assessed under contract law.

I fully accept that the assessor has incorrectly stated that the relevant land where PoFA is applicable includes any land which is subject to statutory control. You are correct that relevant land under PoFA excludes land subject to statutory control and the parking operator can only pursue the driver of the vehicle for the charge.

As per the complaint response you raised, the Airports Act 1986 indicates that Stansted Airport Limited, as an Airport Authority and Highways Authority, falls under statutory control. Whilst the assessor has not disputed this, it is evident they have incorrectly classified this as relevant land. This means that there has been a mis-assessment of your appeal.

 I do apologise for this error and any resulting inconvenience that has been caused. I want to thank you for bringing this to our attention.

 Whilst we always strive to issue accurate and robust decisions, (we consider over 60,000 cases a year) there is always the potential for human errors to be made. I note this is a second instance where this has occurred and therefore, I have escalated this internally. We will ensure that all assessors complete a further extensive training course on the applications of PoFA, specifically in respect of relevant land, to address this issue going forwards. 

To conclude, I am sorry that you have not had a positive experience when using our service. As you are aware, we are a one-stage process and there is no opportunity for you to appeal the decision. I understand you intend to contact the British Parking Association (BPA) regarding the charge.

 POPLA’s involvement with your case has now ended, and my response closes our complaints process. I must advise there will be no further review of your complaint and any further correspondence on the matter will not be responded to.

Yours sincerely,

 

Bethany xxxxx

POPLA Complaints Team"

 

Finally, 

POPLA cannot say that a POFA-worded PCN was properly given at an Airport site.  POPLA cannot say that the keeper is liable.

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

Name and address

Coupon-mad

If that's your first POPLA Appeal it's not a complaint. It's an appeal.

Get rid of 3, 4, 5, 6 and 7.

Replace with the usual 'unclear signage' and 'no landowner authority' POPLA points already written in the NEWBIES thread.

Move the two complaint cases up to come right under where you point out that a keeper can't be liable in your paras 1 and 2.