MET Southgate Stansted - POPLA APPEAL SUCCESSFUL

fivestarsamz

Hello again, I am back with another. This time I am the RK and the vehicle in question is out on rent. I appealed to MET as RK without telling them who the driver was. As usual, they rejected saying the land was not subject to statutory control. Now I am at POPLA stage.

I understand the land is not 'relevant' so keeper liability is none. Does anyone have a map of land under stansted airport to show it is subject to statutory control?

Also, I am looking at other POPLA appeal regarding this and they mostly have No keeper liability because the NtK was sent after the 14 days. But my one was sent within that timeframe. 

Any help would be appreciated. What other points can I put apart from the standard signs issue, and landowner issue?

Thanks in advance

fivestarsamz

Here is the NtK: 



and here is the rejection letter From MET:

Coupon-mad

Copy the thread by @Jughead_2024

fivestarsamz

Coupon-mad said:

Copy the thread by @Jughead_2024

Thank you! I will use his post to write up the POPLA appeal. But his map is for the Gatwick Airport. I am struggling to find the site map for Stansted airport for me to attach it to my POPLA Appeal. Can anyone help me with a picture of the Stansted airport map to show that Southgate park is within Stansted land?

KeithP

fivestarsamz said:
Can anyone help me with a picture of the Stansted airport map to show that Southgate park is within Stansted land?

The map on pages 7 and 11 of this document...
https://assets.live.dxp.maginfrastructure.com/f/73114/x/df8f2e7b97/stn-injunction-stansted-airport-court-order.pdf

...seems to show MacDonalds is outside the airport's official boundary.
Unfortunately, I can see no mention of byelaws on that map.

However, the map on page 8 of this document seems to say that McDonalds is within the airport boundary...
https://assets.publishing.service.gov.uk/media/64d0fc30e5491a00134b5946/Design___Access_Statement_-_checked.pdf

...but again there is no mention of byelaws on that map.

fivestarsamz

Here is my POPLA appeal draft: Any pointers?

Dear POPLA,

On the 23rd of August 2024, MET Parking Services issued a parking charge to me (as keeper of the vehicle) highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “breach of the terms and condition” due to remaining on site “longer than the period of parking that had been paid for or without authorisation”.

As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:

1. Not relevant land under POFA 2012; no registered keeper liability

2.The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

3.Unclear signage

4.No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

Please see below for details

1) Airport land is not 'relevant land' as it is already covered by statutory byelaws 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 by bylaws.

The operator is under the misapprehension that they are operating on "relevant land" which they are not. The land is within the boundary of Stansted 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

Since the land in question is under statutory control, 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.

Airports Act 1986 indicates that Stansted Airport Limited, as an Airport Authority and Highways Authority, fall 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 the same Airport (Stansted) as relevant land, which more than one Assessor took to be true merely because 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. 

MET is in breach of the new joint CoP by issuing a PoFA NtK for an alleged breach of contract on land that is under statutory control. PoFA simply does not apply on this land, whether the NtK is compliant or not.

By breaching the CoP, they have breached the KADOE contract and therefore obtained the keepers data unlawfully.

Map showing XXXXXXXXX boundary:

*****PUT IN A MAP OF STANSTED AIRPORT********

2)The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

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. At no point have MET Parking Services provided any proof as to the identity of the driver of the vehicle; nor have I provided them with the identity of the driver (nor do I intend to).

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) I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event.

I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. 

As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a carpark where they could have paid nothing. It was not a genuine attempt to contract for unlimited parking in return for £100.

4) As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. 

The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d. who has the responsibility for putting up and maintaining signs

e. the definition of the services provided by each party to the agreement

I sincerely hope you are able to help me.

Many thanks,

NAME

Coupon-mad

If you say in your POPLA appeal that this area is within Stansted Airport, then the burden lies with the operator to evidence that it is not.

fivestarsamz

KeithP said:

fivestarsamz said:
Can anyone help me with a picture of the Stansted airport map to show that Southgate park is within Stansted land?

The map on pages 7 and 11 of this document...
https://assets.live.dxp.maginfrastructure.com/f/73114/x/df8f2e7b97/stn-injunction-stansted-airport-court-order.pdf

...seems to show MacDonalds is outside the airport's official boundary.
Unfortunately, I can see no mention of byelaws on that map.

However, the map on page 8 of this document seems to say that McDonalds is within the airport boundary...
https://assets.publishing.service.gov.uk/media/64d0fc30e5491a00134b5946/Design___Access_Statement_-_checked.pdf

...but again there is no mention of byelaws on that map.

I have also found this aswell but again no mention of byelaws. Not sure which map I should use. 

https://assets.publishing.service.gov.uk/media/64d0fc8ae5491a000d4b5941/Transport_Statement_-_checked.pdf

fivestarsamz

Coupon-mad said:

If you say in your POPLA appeal that this area is within Stansted Airport, then the burden lies with the operator to evidence that it is not.

So it would be acceptable to not put any map in at all?

KeithP

fivestarsamz said:

Coupon-mad said:

If you say in your POPLA appeal that this area is within Stansted Airport, then the burden lies with the operator to evidence that it is not.

So it would be acceptable to not put any map in at all?

I would probably include a map that shows MacDs within the boundary, i.e. the second one in my post, and as CM says, let them prove otherwise.

fivestarsamz

KeithP said:

fivestarsamz said:

Coupon-mad said:

If you say in your POPLA appeal that this area is within Stansted Airport, then the burden lies with the operator to evidence that it is not.

So it would be acceptable to not put any map in at all?

I would probably include a map that shows MacDs within the boundary, i.e. the second one in my post, and as CM says, let them prove otherwise.

okay perfect thank you. 

I will insert into the POPLA draft: 

Map show Stansted Boundary. The red circle pointed by the red arrow shows where Southgate Park land is. You can clearly see it is within the boundary of Standsted airport. 



How is the rest of the POPLA draft in post 6?