NSL Fine Stanstead Airport

mkc2bad

Hi,

I recently received a NTK / parkig charge from NSL as below -





I duley raised an appeal via the NSL portal with the following 

To whom it may concern,

Reference: Parking Charge Notice 130000003189600 : Vehicle Registration xxxxxx

I refer to the above-detailed Parking Charge Notice (“PCN”) issued to me by NSL Ltd as a Notice to Keeper. I confirm that I am the keeper, but was not the driver as I was still inside the airport arriving from a flight abroad. I am a under no obgligation to provide driver details.

Firstly, there was no evidence provided other than a photo of a numberplate.

Secondly, as its keeper, and 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 and airport byelaws 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.

I have also seen that recently the lead adjudicator at POPLA noted that because Stansted Airport is covered by Bylaws, POFA 2012 schedule 4 doesn't apply, regardless of what that NTK PCN states - the point being that the keeper has no liability in law.

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.




Predictably this was declined and I received this rejection via email (There is indeed cctv eveidence on the portal which I wasnt aware of)





I just wanted to check that I am best off raising a POPLA appeal and using the same reply coupon-mad as posted at the enf of this thread:
https://forums.moneysavingexpert.com/discussion/6492608/stansted-airport-parking-fine-for-stopping-popla-comments-on-operator-evidence

Thanks
Mike

Coupon-mad

Sort of.

This is actually a final comment to POPLA, not the appeal itself:

https://forums.moneysavingexpert.com/discussion/comment/80464044/#Comment_80464044

But I do recommend you go in hard with this one and use the points in that reply within your POPLA appeal.

mkc2bad

Thanks for the advice. So I submitted my POPLA appeal as below on the portal

A notice to keeper was issued on 31/10/2023 and received by me, the registered keeper of xxxxxxx no earlier than 3/11/2023 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 6/12/23. Despite being told I was allowed to appeal to POPLA and given a reference number, I have received additional letters from NSL demanding payment and threating court action should I not comply which I believe is not allowed and constitutes harassment.

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) 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 NSL 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 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 provided on the NTK. Having reviewed the evidence on the website, there is CCTV footage provided of a vehicle stopping. However, the signage provided in NSL’s reply (see below) to my first appeal states that “No stopping, No Waiting at any time for drop off / pick up” At no point is anyone seen exiting or entering the vehicle so this is not valid. At one point the camera operator zooms in on a sign, but it is obscured on a fence behind bushes/plants and clearly not visible for anyone to read, much less so without stopping to review what the sign is displaying.

 

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 also bring to final note, that 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). I wasn't driving. This is Airport land.  This is not 'relevant land' (as my appeal above already pointed out).  I cannot be held liable and you cannot uphold the PCN under the POFA.

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

----------------------------------------------------------------------------------------

NSL have since replied to this appeal and have addressed NONE of the points I raised. Instead, they have simply copy and pasted the letter I got sent (last image in post 1) into the POPLA portal as their reply.

I'm assuming now I can just reply in the POPLA portal with the excellent worded post in this thread

https://forums.moneysavingexpert.com/discussion/6492608/stansted-airport-parking-fine-for-stopping-popla-comments-on-operator-evidence

Thanks

Mike

Coupon-mad

Yes send this:

https://forums.moneysavingexpert.com/discussion/comment/80464044/#Comment_80464044

mkc2bad

Thanks you, I have done so, will update when I hear back. Thanks for all your help

Coupon-mad

I'm interested in these NSL cases as I have an open and six month ongoing complaint in with the BPA.

Please have another look at the POPLA Portal because they won't have just posted a letter.  They will have answered the appeal as well.  There are probably two links, one to pictures and one to their reply.

Please show us their entire evidence pack (redacted of data).  Download and keep it, because you won't be able to easily access it after POPLA make their decision.

mkc2bad

Coupon-mad said:

I'm interested in these NSL cases as I have an open and six month ongoing complaint in with the BPA.

Please have another look at the POPLA Portal because they won't have just posted a letter.  They will have answered the appeal as well.  There are probably two links, one to pictures and one to their reply.

Please show us their entire evidence pack (redacted of data).  Download and keep it, because you won't be able to easily access it after POPLA make their decision.

On the portal, there was literally an electornic copy of the original response they had said me via post. I have uploaded my appeal to POPLA as I posted above, and today had confimation via email that NSL have withdrawn their appeal and therefore has been cancelled. I assume they couldn't be bothered to actually reply to the points I raised in my POPLA appeal, but just wanted to say a huge thanks for all the info provided on this forum

Mike

Coupon-mad

mkc2bad said:

Coupon-mad said:

I'm interested in these NSL cases as I have an open and six month ongoing complaint in with the BPA.

Please have another look at the POPLA Portal because they won't have just posted a letter.  They will have answered the appeal as well.  There are probably two links, one to pictures and one to their reply.

Please show us their entire evidence pack (redacted of data).  Download and keep it, because you won't be able to easily access it after POPLA make their decision.

On the portal, there was literally an electornic copy of the original response they had said me via post. I have uploaded my appeal to POPLA as I posted above, and today had confimation via email that NSL have withdrawn their appeal and therefore has been cancelled. I assume they couldn't be bothered to actually reply to the points I raised in my POPLA appeal, but just wanted to say a huge thanks for all the info provided on this forum

Good.  Nicely done and thanks for updating.

I think the BPA are finally moving on the NSL  complaint after I reminded them about it being waaay overdue this month, and I sent the DVLA an FOI request, to cough up what they hold on this issue.  DVLA have acknowledged the FOI request.

Popcorn is out...