Mcdonalds parking Gatwick PCN

Roknrolla

Hi folks I'm looking for some additional help please 🙏 
I received a PCN for overstaying in the Gatwick McDonald's and I read through the newbies and another thread on here by someone with the same issue. 
I used the info on here to appeal and got the standard rejection letter, so used the same appeal text which the other poster used. He had his cancelled but I have had this email from POPLA...... 

Your parking charge appeal against MET Parking Services - EW.

MET Parking Services - EW has now uploaded its evidence to your appeal. This will be available for you to view by clicking here. 

Please note: some evidence may not show immediately, if it is not currently available on your account please check back later before contacting us.

You have seven days from the date of this correspondence to provide comments on the evidence uploaded by MET Parking Services - EW.

Please note that these comments must relate to the grounds of appeal you submitted when first lodging your appeal with POPLA, we do not accept new grounds of appeal or evidence at this stage

Any comments received after the period of seven days has ended will not be considered and we will progress your appeal for assessment. Therefore, if you have any issues with the evidence uploaded by MET Parking Services - EW such as being unable to view it online, please contact POPLA immediately via phone - 0330 1596 126, or email - info@popla.co.uk, so that we can look to rectify this as soon as possible.

After this period has ended, we will aim to issue our decision as quickly as possible. The decision we reach is final and binding. When the decision is reached there is no further option for appeal.

Yours sincerely

POPLA Team

Roknrolla

Hi folks I'm looking for some additional help please 🙏 
I received a PCN for overstaying in the Gatwick McDonald's and I read through the newbies and another thread on here by someone with the same issue. 
I used the info on here to appeal and got the standard rejection letter, so used the same appeal text which the other poster used. He had his cancelled but I have had this email from POPLA...... 

Your parking charge appeal against MET Parking Services - EW.

MET Parking Services - EW has now uploaded its evidence to your appeal. This will be available for you to view by clicking here. 

Please note: some evidence may not show immediately, if it is not currently available on your account please check back later before contacting us.

You have seven days from the date of this correspondence to provide comments on the evidence uploaded by MET Parking Services - EW.

Please note that these comments must relate to the grounds of appeal you submitted when first lodging your appeal with POPLA, we do not accept new grounds of appeal or evidence at this stage

Any comments received after the period of seven days has ended will not be considered and we will progress your appeal for assessment. Therefore, if you have any issues with the evidence uploaded by MET Parking Services - EW such as being unable to view it online, please contact POPLA immediately via phone - 0330 1596 126, or email - info@popla.co.uk, so that we can look to rectify this as soon as possible.

After this period has ended, we will aim to issue our decision as quickly as possible. The decision we reach is final and binding. When the decision is reached there is no further option for appeal.

Yours sincerely

POPLA Team

And this is MET response to the appeal..... 

Operator Case Summary

In the appeal to POPLA Mrs  raises the following grounds for appeal: • No keeper liability While we note Mrs  comments, we are confident that we have complied with the relevant requirements of PoFA 2012. Please see our compliant Notice to Keeper in Section B of our evidence pack. Please also see a full explanation of why we may pursue the registered keeper under Schedule 4 of PoFA 2012 in Section C of our evidence pack. The contract in Section E demonstrates that we are contracted by the landowner, and we can confirm that the land falls within the definition of relevant land in Paragraph 3 of Schedule 4 of the Protection of Freedoms Act. • Signage evidence We are confident that there are sufficient signs in place in this car park and that the signs are prominently displayed and clearly state the terms and conditions. In Section E of our evidence pack we have included images of the signs in place and a site plan of the location. It remains the driver’s responsibility to check the signs where they park and comply with the stated terms and conditions. We are confident that our signage complies with all relevant legislation and regulations. • Landowner authority We have included a copy of our contract with the landowner in Section E of our evidence pack. We have redacted commercially sensitive details and highlighted relevant clauses for ease of reading. Our contract with the landowner grants us authority to form contracts with motorists and issue parking charge notices for contractual breach. We refer you to the Supreme Court ruling on ParkingEye v Beavis for the judges’ determination on whether a parking operator is acting as an agent or principal. The ruling may be found at supremecourt.uk/cases/docs/uksc-2013-0280-judgment.pdf.darl The terms and conditions of use of the car park are clearly stated on the signs prominently displayed at the entrance to and around the car park. These include that parking is for McDonald’s customers only and there is a maximum permitted stay of 60 minutes. Please note that these terms and conditions apply to all users of the car park, which naturally includes customers of the restaurant. As the photographic evidence provided in Section E of our evidence pack demonstrates, the vehicle remained in the car park for longer than the maximum permitted stay. It remains the driver’s responsibility to check the signs where they park and comply with the stated terms and conditions. In light of this we believe the charge notice was issued correctly and the appeal should be refused.

They have also included lots of documents and photographs of landowner agreements and signage etc. 

Any help on what to do next would be most appreciated 

Roknrolla

I'm thinking of replying with this but would really appreciate some help or advice before I do....... 
I am the registered keeper. MET cannot hold a registered keeper liable for any alleged contravention on land that is under statutory control. As a matter of fact and law, MET will be well aware that they cannot use the PoFA provisions because the McDonalds at Gatwick Airport is not 'relevant land'.

If Gatwick Airport wanted to hold owners or keepers liable under Airport Byelaws, that would be within the landowner's gift and another matter entirely. However, not only is that not pleaded, it is also not legally possible because MET is not the Airport owner and their 'parking charge' is not and never attempts to be a penalty. It is created for METs own profit (as opposed to a byelaws penalty that goes to the public purse) and MET has relied on contract law allegations of breach against the driver only.

The registered keeper 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.

LDast

No. You don't reply to the operators response pack with an appeal! No matter what MET have claimed about their NtK being fully compliant with PoFA, it matters not an iota.

Did you submit a plan of the Gatwick airport boundary, in which airport bylaws apply? If you didn't, it's a bit late now as you can't submit it now. However, the location of this McDonalds is within the boundary of Gatwick airport. If it is within that boundary, then airport bylaws apply and therefore the land is under statutory control. If the land is under statutory control, then PoFA 3(1)(c ) applies. For clarity, this is the wording of PoFA and I have highlighted the reference that is important:

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.

So, if you look at the map below, you can see that this McDonalds is within the Gatwick airport boundary which means that the land is under statutory control (bylaws) which means that it is NOT relevant land for the purposes of PoFA. Therefore, no matter how pretty their NtK is and all the words state that the keeper is liable under PoFA, it simply isn't.



You have to get this point across to the POPLA assessor because they can be a bit moronic when it comes to pleasing their paymasters, and ignore the actual facts as they are bamboozled into stupid assessments that will never be reversed, no matter even if they admit the decision was wrong.

Roknrolla

LDast said:

No. You don't reply to the operators response pack with an appeal! No matter what MET have claimed about their NtK being fully compliant with PoFA, it matters not an iota.

Did you submit a plan of the Gatwick airport boundary, in which airport bylaws apply? If you didn't, it's a bit late now as you can't submit it now. However, the location of this McDonalds is within the boundary of Gatwick airport. If it is within that boundary, then airport bylaws apply and therefore the land is under statutory control. If the land is under statutory control, then PoFA 3(1)(c ) applies. For clarity, this is the wording of PoFA and I have highlighted the reference that is important:

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.

So, if you look at the map below, you can see that this McDonalds is within the Gatwick airport boundary which means that the land is under statutory control (bylaws) which means that it is NOT relevant land for the purposes of PoFA. Therefore, no matter how pretty their NtK is and all the words state that the keeper is liable under PoFA, it simply isn't.



You have to get this point across to the POPLA assessor because they can be a bit moronic when it comes to pleasing their paymasters, and ignore the actual facts as they are bamboozled into stupid assessments that will never be reversed, no matter even if they admit the decision was wrong.

Thank you for the reply
Sorry I may have been unclear, I'm not replying to the operator I meant I need to reply to POPLA with any comments regarding the operators response.
So would you suggest that I reply to POPLA with the highlighted text and the map? 

Coupon-mad

Yes but you can only do that by email.

Roknrolla

Coupon-mad said:

Yes but you can only do that by email.

Ok so on the POPLA page there is a box for comments which I can't upload anything to anyway and it also states that no other evidence will be accepted (which is also mentioned as being too late to submit now by @LDast above) so would you suggest I write in the POPLA comments box that it is not relevant land etc and also send an email with a picture of the airport boundary map or just do one or the other? Sorry for the newbie questions, I just want to get it right. 

Coupon-mad

Nope. By email like in the other exact same thread earlier today.

Roknrolla

Coupon-mad said:

Yes but you can only do that by email.

This is my drafted email to them..... 

Dear POPLA team,

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

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 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. 

Kind regards 

Coupon-mad

I'd add paragraphs reminding POPLA of the repeated mistake they made several times in 2023 when another operator, NSL were wrongly telling POPLA that Stansted Airport was relevant land, subject to the kerper liability provisions of the POFA ... and Assessors just fell for it.  A formal complaint was made re Code ref 4822223007 and Bethany Young of the POPLA Complaints Team apologised because POPLA Assessors had repeatedly and naively believed the operator and had got the law wrong.

She stated that Assessors would be re-trained, with her findings on 7/12/2023 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."

Roknrolla

Coupon-mad said:

I'd add paragraphs reminding POPLA of the repeated mistake they made several times in 2023 when another operator, NSL were wrongly telling POPLA that Stansted Airport was relevant land, subject to the kerper liability provisions of the POFA ... and Assessors just fell for it.  A formal complaint was made re Code ref 4822223007 and Bethany Young of the POPLA Complaints Team apologised because POPLA Assessors had repeatedly and naively believed the operator and had got the law wrong.

She stated that Assessors would be re-trained, with her findings on 7/12/2023 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."

Lovely thank you I'll add something in regarding this and get it sent. 
Thanks for the help and advice @Coupon-mad and @LDast I will post an update when I get it.