Mcdonalds Gatwick, MET parking NTK's

Jughead_2024

LDast said:

Just two points to raise from METs 'evidence':

She adds that we cannot legally issue tickets here as the restaurant is situated on airport land.

Did the appellant actually state that MET cannot legally issue 'tickets' because it is on airport land? No one here ever said that as it is not true. MET can issue PCNs at that location even though it is on land under statutory control. What they cannot do, is hold the keeper liable if they don't know the identity of the driver.

 Whilst we note ........... comments, we are confident that the location is considered relevant land as defined in paragraph 3 of Schedule 4 of the Protection of Freedoms Act. It does not fall within any of the exceptions listed in paragraph 3.1, and it is not subject to statutory control as defined in paragraphs 3.3 and 3.4. An area being part of a parcel of land surrounding an airport does not automatically mean that statutory control is in place for that particular area.

Point out that the "parcel of land" does not "surround the airport". The "parcel of land" is surrounded by the airport. Big difference and should be pointed out to the assessor. If the moronic scammers at MET are trying to bamboozle their mates at POPLA, this is a clear example of their mendaciousness.
 

I don't remember anyone saying that but its possible it made it into the comments box when the appeal was lodged with POPLA, I cannot be sure at this point.

Jughead_2024

Dear POPLA team,

I am writing in response to the operator's (MET Parking Services) "evidence pack" in regards to this case.

I was unable to access the portal over the weekend, so I am emailing my comments to you. There is an important point of law that the assessor needs to get right.

The operator states: "Whilst we note ........... comments, we are confident that the location is considered relevant land as defined in paragraph 3 of Schedule 4 of the Protection of Freedoms Act. It does not fall within any of the exceptions listed in paragraph 3.1, and it is not subject to statutory control as defined in paragraphs 3.3 and 3.4. An area being part of a parcel of land surrounding an airport does not automatically mean that statutory control is in place for that particular area."

I would point out that the "parcel of land" does not "surround the airport". The "parcel of land" is surrounded by the airport. A big difference which I feel the need to clarify for the assessor.

The operator is under the misapprehension that they are operating on "relevant land" which they are not. The land is within the boundary of Gatwick Airport and is under statutory control (Airport bylaws) and is therefore not "relevant land" as defined in PoFA schedule 4 paragraph 3.

2(1) In this Schedule—

“relevant land” has the meaning given by paragraph 3;

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

 

I have already included a map of the airport boundary which also highlights where the McDonald's sits within this boundary.

As you can see, the land in question is within the Gatwick Airport boundary and under statutory control and as such the NtK issued by MET is not valid as "relevant land" as required by PoFA which means as the registered keeper of the vehicle cannot be presumed or inferred to have been the driver, nor pursued under some twisted interpretation of the law of agency.

Their NTK can only hold the driver liable.

The Airports Act 1986 indicates that Gatwick Airport Limited, as an Airport Authority and Highways Authority, falls under statutory control.

It is legally impossible under POFA for an Airport to be 'relevant land'. In the recent past, POPLA has sometimes got this wrong and your service had to apologise for a series of mistakes made by Assessors in 2023. This related to the misclassification (assumption) of another Airport (Stansted) as relevant land, which more than one Assessor took to be true merely because, like here, the operator said it was so.

Don't believe what you read from the operator.

This issue was highlighted in POPLA's reply to a formal complaint, Code ref 4822223007, where Bethany Young of the POPLA Complaints Team acknowledged and apologised for the repeated errors made by Assessors who had blindly accepted what the operator said and not applied POFA properly.

On 7/12/2023 she stated that Assessors would be re-trained, with POPLA's Complaints Team findings being as follows:

"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." 

I assume that Assessor retraining took place earlier this year.  Given this information and with correct application of the law, the only course of action is to accept and uphold my appeal. 

Kind regards 


Would this be ok?

For the second one we will also add:

The operators evidence pack is quoting the wrong vehicle registration at the beggining. ....... is not my registration.

Coupon-mad

Yes.

But put the quote from last year's POPLA complaint outcome in italics.

Jughead_2024

Coupon-mad said:

Yes.

But put the quote from last year's POPLA complaint outcome in italics.

Done, when I copy and pasted it into a document it lost all the bold and italics.

Thanks.

Jughead_2024

So we got POPLAs decision today and we've been unsuccessful. I imagine the second one will be the same as they are almost identical cases but still waiting to hear on it. Bit deflated tbh and will probably just pay up now.

Fruitcake

Why on earth would you even consider paying when the PoPLA decision is not binding on the motorist, and it appears that PoPLA assessors are either absolutely clueless or are making things up?

Coupon-mad

Jughead_2024 said:

So we got POPLAs decision today and we've been unsuccessful. I imagine the second one will be the same as they are almost identical cases but still waiting to hear on it. Bit deflated tbh and will probably just pay up now.

Why on earth would you pay? Nobody here pays after losing at POPLA.

POPLA are wrong in your case anyway.

Show us the POPLA DECISION but chop it into ten paragraphs please.

Jughead_2024

I'm just not sure I want to put anymore time and effort into fighting it, all this legal talk paragraph this, subsection that clause this goes way over my head. I really dont want debt collectors turning up either.

What is next after POPLA? I'll take another look at their decision now but from what I could tell last night they disagreed with pretty much everything in the appeal.

Jughead_2024

When assessing an appeal POPLA considers if the parking operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park. I understand the appellant says that they are the registered keeper of the vehicle and the operator has not shown the individual it is pursuing it the driver of the vehicle. They say they have been made aware that the McDonald’s is situated on airport land, so the operator cannot legally issue PCNs, yet they do. They say that the land McDonald’s is on is not relevant land under PoFA 2012. I can see that the appellant has provided as part of their evidence, a site map which they say shows the boundaries of the airport land and how McDonald’s is within that boundary. Although the appellant has provided a site map to show the airport boundaries, it does not mean that McDonald’s falls under airport bylaws and that it is not relevant land. The appellant has not provided any compelling evidence to suggest that the land is not relevant and that it is to be manage under airport byelaws.

I can see within their evidence pack, the operator has explained that the land they manage does not fall within any of the exceptions set out within PoFA 2012 and although the land is surrounded by an airport, does not automatically mean that statutory control is in place and that it should be managed under airport byelaws. As such, I am satisfied that land is relevant land and that the operator has the authority to hold the registered keeper of the vehicle liable for the PCN. Within their comments, I can see the appellant has referenced a complaint response issued by Bethany Young for a POPLA decision relating to relevant land and has provided the complaint response for the POPLA appeal. The guidance and information provided within the complaint response by POPLA assessor Bethany, does not made a material difference to the validity of this PCN, nor does it have an effect on the decision made. The appeal decision that the complaint response relates too, is for an appeal decision which is different to the appellants. In this case, the driver has not been identified for the contravention on the date of the event, I am considering keeper liability and will check that the PCN issued complies with Section 4 of PoFA 2012.

The operator has provided a copy of the Notice to Keeper (NTK) sent. As the driver of the vehicle has not been identified, the NTK will need to comply with Section 9 of PoFA 2012. Having reviewed the evidence provided by the operator, I am satisfied that the NTK has complied with the requirements of PoFA 2012. I can see that the keeper was invited to supply the driver details to the operator within 28 days beginning with the day after that on which the notice was given. As this information has not been supplied, then the operator reserves the right to pursue the keeper of the vehicle. As such, I will be considering their liability for this charge. I can see the appellant has referenced an appeal decision issued by Steve Macallan from 2016. POPLA assesses each appeal individually and we only consider the information relating to this specific appeal. Therefore, we cannot consider a decision that has been issued by another assessor when looking at this decision.

I note the appellant says that they used this McDonald’s after coming home from a holiday, it was busy and they had to wait for their food. They say had they seen the time limit, they would have made sure they stuck to it, but they did not see it anywhere in the car park. They say the text stating a 1 hour parking limit must have been too small or not showing, as none of them noticed it. The BPA has a Code of Practice which set the standards its parking operators need to comply with. Section 19.3 of the Code says parking operators need to have signs that clearly set out the terms. In this case the parking operator’s evidence shows images of the signage on site, I can see from the site map provided that there are multiple signs located around the site.

These includes signs at the entrance of the car park and a further signs located throughout the site. The signs confirm that there is a 60 minutes maximum stay, how the car park is for the use of McDonald’s customers and how the terms and conditions apply at all times. The sign goes on to explain that a £100 PCN will be issued for failing to comply with the terms and conditions of parking. Therefore, I am satisfied that the signage on site is compliant with the BPA Code of Practice. Additionally, the signs do not need to be placed directly in the position where the vehicle stopped nor do they need to be visible from each parking space on site. They simply must be placed throughout the site so that drivers are given the chance to read them. It is the responsibility of the motorist to ensure that when entering private land subject to terms and conditions, that they ensure they have read and understood the signage before leaving their vehicle parked.

I understand the appellant says they would like a copy of the signs from the date of the parking event, as the signs failed to properly inform the driver of the terms and conditions of parking. There is no requirement for the operator to supply up to date images of the signage in the car park, if the terms and conditions remain the same as those put in place on in August 2022. In addition to this, the appellant has not provided any date and time stamped evidence to show that there is no signs on site or that they are not clear, legible and notify motorists of the terms and conditions of parking. I can see the appellant has referenced the case of Excel Parking Services Ltd vs Martin Cutts 2011. It must be noted that Excel Parking Services Ltd vs Martin Cutts 2011 was held in a district court, so does not set a precedent and does not make a material difference to the validity of this PCN.

In this case, the operator has provided the ANPR images of the appellants vehicle captured by the ANPR cameras entering and exiting the site. It shows that the vehicle entered at **:** and was observed leaving * hour and ** minutes later at **:**. Therefore, as the appellant exceeded the maximum stay by ** minutes, they breached the terms and conditions of parking and became liable for the issuance of a PCN. I appreciate the appellant says the operator does not have proprietary interest in the land and they require the operator provides an unredacted copy of the contract with the landowner.

I can see the appellant has referenced section 7 of the BPA Code of Practice. The BPA has a Code of Practice which set the standards its parking operators need to comply with. Section 7.1 of the BPA Code of Practice outlines that parking operators must have written authorisation from the landowner or their agent, to manage the land in question. This can come in the form of a witness statement under Section 23.16B of the BPA Code of Practice or a full contract. In this case the operator has provided evidence of their contract with the landowner confirming that they have landowner authority. This authorises them to operate on the land in questions as the document details the locations the land they manage. It also explains that they are authorised to carry out all aspects of parking control and enforcement on the site and also details a number of roads that the operator is authorised to manage and issue PCNs to vehicles breaching the terms displayed.

The evidence provided in relation to this appeal meets the criteria POPLA requires. I am satisfied that the operator has sufficient authority at the site on the date of the parking event. Furthermore, if authority had since been removed, it is likely that the landowner would remove the signage at the same time. Not many landowners would look on quietly while someone operates on their land without their permission. In addition to this, the appellant has not provided any evidence to suggest that the operator do not manage the land in question, that they cannot manage the roads as private land and that members of the public would be exempt from the terms, therefore there is nothing that casts doubt on the legitimacy of the operators contract with the landowner.

I acknowledge the appellant says they do not feel it is fair to be charged either £60 or £100 for an overstay of a short amount of time, but this has no bearing on my decision. The Supreme Court considered private parking charges in a high-profile case, Parking Eye v Beavis, and decided that a charge did not need to reflect any actual loss incurred by a parking operator or landowner. The Court’s full judgement in the case is available online should the appellant want to read it. After considering the evidence from both parties, the appellant was observed parked for longer than the maximum stay allowed and therefore did not comply with the terms and conditions of the site. As such, I am satisfied the parking charge has been issued correctly and I must refuse the appeal.

Jughead_2024

Coupon-mad said:

Jughead_2024 said:

So we got POPLAs decision today and we've been unsuccessful. I imagine the second one will be the same as they are almost identical cases but still waiting to hear on it. Bit deflated tbh and will probably just pay up now.

Why on earth would you pay? Nobody here pays after losing at POPLA.

POPLA are wrong in your case anyway.

Show us the POPLA DECISION but chop it into ten paragraphs please.

Done, As always I appreciate the help.