McDonalds Southgate Park - Unsuccessful POPLA

Silver:Courage

I thought I'd followed the instructions on the newbies posts but obviously did something wrong. 
Is there any more I can do? 
Thanks


Decision  Unsuccessful

Assessor Name. Stuart Lumsden

Assessor summary of operator case

The operator has issued the parking charge notice (PCN) due to parking without authorisation. 

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal: • The operator has not shown the individual they are pursuing is the driver and has failed to comply with PoFA. • There is insufficient evidence of the alleged breach. • The site boundary is unclear. • No evidence of landowner authority. The appellant has raised new grounds of appeal after reviewing the operators evidence pack and states the land is within the boundary of Stanstead airport and is under statutory control. As this is a new ground and the operator has not had the chance to address, I am unable to consider it. They would like a barrier in place as it’s not clear that the different areas are under different control. The appellant has provided the following as evidence to support their appeal: • A Stansted airport design and access statement. The above evidence will be considered in making our determination.

Assessor supporting rational for decision

POPLA is a single stage appeal service, we are impartial and independent of the sector. We consider the evidence provided by both parties to assess whether the PCN has been issued correctly by the parking operator and to determine if the driver has complied with the terms and conditions for the use of the car park or site. Our remit only extends to allowing or refusing an appeal. I acknowledge the appellants grounds of appeal and evidence provided of the Stansted airport design and access statement. I note it’s contents, but as stated above, I am unable to consider the comments and evidence as these are new grounds of appeal. The appellant has made it clear they are the registered keeper and as such, I need to establish if the operator has complied with the requirements of the Protection of Freedoms Act (PoFA) 2012. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper of the vehicle, the regulations laid out in PoFA must be adhered to. I have reviewed the PCN and note that the breach occurred on 22nd July 2024, and the PCN was issued on 24th July 2024, well within 14 days specified in PoFA. The Notice to Keeper goes on to state that if after 29 days the full amount has not been paid and they do not know the name and address of the driver, they have the right to purse the registered keeper. It also instructs the keeper to pass the notice to the driver. As such, I must conclude that the operator has complied with the requirements of PoFA. I have reviewed the parking operators evidence pack, and it has provided images of signs throughout the site and upon entry, including during the hours of darkness, which make the terms clear, and customer of Southgate Park can park for free for up to 60 minutes but must remain on the premises. The signs advise that if a motorist leaves the premises or are not a customer of Southgate Park, they must pay. There are further signs when leaving site to advise motorists not to walk off site and that the car park is exclusively for Starbucks customers. Whilst I agree there are no barriers, it’s evident the area only serves Starbucks which was closed at the time. It’s always the responsibility of the driver to review the signs in full and comply with the terms and conditions. POPLA can only assess the validity of the PCN against the terms. The operator has provided a site map to demonstrate the site boundaries which are very clear as there is only one entrance and one exit. I appreciate this may not be as clear to a motorist upon entry, but the signs do advise the area is for Starbucks customers only and McDonald’s is not part of the park. The operator has provided ANPR images of the appellants vehicle entering the site at 01:40 before exiting at 02:01, remaining for 21 minutes in total. They have also provided a list to demonstrate they searched for the appellants vehicle and found no payment to park. The parking operator is a member of the British Parking Association (BPA) and must comply with it’s Code of Practice which sets out minimum guidelines for private parking operators. Section 7.1 relates to written authorisation and states: If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges. The operator has provided a copy of the landowner agreement which was originally signed by both parties in 2014. The document stipulates the length of the contact and that it continues unless cancelled. The operator has confirmed the contract is ongoing and has not been cancelled and the signs are dated from at least 2022. The agreement stipulates the land in question and is signed by both parties. I find this more than sufficient to demonstrate the operator has authority to issue PCN’s on the land in question. After considering the evidence, I can see that the terms of parking were made clear, and that the driver broke them by failing parking without authorisation. I am satisfied that the PCN was issued correctly and refuse this appeal. Any questions relating to payment of the parking charge should be directed to the operator.

Coupon-mad

Complain to POPLA:


Dear POPLA Complaints Team,

Re POPLA CODE XXXXXXXXXX

You have misapplied the law regarding lack of keeper liability at Airports again. When will POPLA Assessors finally understand that Airport Land is not ever 'relevant land', so the POFA Sch 4 cannot apply?

Your Assessor says this - below - as if it is optional for him to consider whether land is 'relevant land' when the site is clearly an Airport (look at the maps and look at both parties' submissions):

"The appellant has raised new grounds of appeal after reviewing the operators evidence pack and states the land is within the boundary of Stanstead airport and is under statutory control. As this is a new ground and the operator has not had the chance to address, I am unable to consider it."

Don't be daft. This is a matter of law and is a standard POPLA consideration when considering whether POFA applies (as was raised in the appeal).

POPLA must apply the law - determining whether Schedule 4 applies - when a person raises the matter of 'lack of keeper liability'.  Not half cover it by glancing at the NTK only. Come on POPLA. You've been doing this for years.  At least try to get the law on keeper liability right.

Whether Airport land is 'under statutory control' is NOT a phrase that a registered keeper appellant has to know and raise specifically.  It is more than enough for an appellant to say that keeper liability does not apply. Which I did.

The Assessor must then consider the POFA fully.  In fact, they must look at that whether an appellant raises it or not, in any case where the appellant is only known to be the keeper.

Firstly, never mind the NTK; the first test is whether this was 'relevant land'. Airport land is never relevant land and Assessors were retrained on this after another complaint a year ago (re NSL and Stansted Airport). 

Here is that complaint outcome and apology from your team (my bold):

"From: POPLA Complaints<complaints@popla.co.uk>
Date: Thu, Dec 7, 2023 at 4:18 PM
RE: 4822223007: Website Enquiry Form - Complaint about POPLA

Dear xxxx xxxxxx,

Your complaint about POPLA

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. You are also free to contact Citizens Advice for independent legal advice.

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,

 xxxxxx xxxxx

POPLA Complaints Team"

My case is the same.

The Assessor was wrong in my case not to apply POFA correctly and part of his normal determination should include: 'given this land is an Airport, the entire site is 'under statutory control' unless the operator proves it is not'.  To blame me for not using that exact phrase until Comments stage and blithely saying "so I don't have to bother to look at that" is to (yet again) misapply POFA on Airport land.

This case is in the public domain on MSE forum and will be raised with the MHCLG.

This decision shows yet again that POPLA doesn't understand the ONE LAW that you (wrongly) think is the only law which applies to parking on private land.  Yet you can't even consistently get this law right.

POPLA is seemingly not fit for purpose. 

Kindly review this complaint properly and consistently with last time your complaints team promised to retrain your assessors. What went wrong? Is he new or did he miss the retraining day?  This is a formal complaint.

Yours faithfully

geronimo67

Hello! Do we know the outcome of this complaint?

KeithP

geronimo67 said:

Hello! Do we know the outcome of this complaint?

We don't know if @abidarling bothered to send that complaint.
They have given no indication that they have even read the above reply.

Silver:Courage

Hi all 
Sorry I did read it and didn't reply on here. I have done a 'complaint to POPLA' and await the response. We have now had 3 letters from Debt Recovery Plus. Do you know what the next stage would be? 
Thanks

Coupon-mad

abidarling said:

Hi all 
Sorry I did read it and didn't reply on here. I have done a 'complaint to POPLA' and await the response. We have now had 3 letters from Debt Recovery Plus. Do you know what the next stage would be? 

You already know the next stage if you've read NEWBIES PLEASE READ THESE FAQS FIRST.

Sit tight. Do nothing except the below.
By going confidently into the 'ignore' stance, the only steps to take are:

- Tell them if you move house within 6 years.

- Ignore the tedious £170 threatograms shown in pictures in the 4th post of the NEWBIES thread. Did you miss the pics of Debt Recovery Plus and other letters already there in the thread?

- Come back if you get a solicitor's LBC as per the 2nd post of the NEWBIES thread. 

AP25

I’m in the same position where they’ve rejected my appeal and now ordered me to pay £100 or they’ll take me to court any advice on what to do next please?

KeithP

AP25 said:

...any advice on what to do next please?

Yes, have another read of the post you have just posted under.
Doesn't that offer the guidance you are looking for?

Silver:Courage

Latest Update. Annoyingly just found the following response from my POPLA appeal in spam. We have now had our 8th email from Debt Recovery Plus at £170. Do you know how many more we get before it goes to the next stage? Hubby (whose name this is in) is getting more antsy each time as doesn't want a CCJ against his name. Do we go to CAB? Or is there another way of stopping these scammers? 
Thank you for your help. 

Thank you for your webform received 15 January 2025, outlining the reasons why you are unhappy with the decision that has been reached by the assessor in your appeal. This was passed to me by the POPLA team as I am responsible for investigating complaints.

 

We offer a single stage determinative process and we would not change a decision because either party disputes the assessor’s decision. However, we may consider an appeal if there has been a procedural error, for example – if we failed to consider evidence provided by the motorist.

 

The crux of your complaint is that we have misapplied the law regarding keeper liability at Airports again.

 

You state that Airport land is not ever relevant land so you understand that schedule 4 the Protection of Freedoms Act (POFA) cannot apply.

 

You explain that the assessor has indicated it is optional for them to consider whether land is relevant as they considered this to be a new ground of appeal after you had reviewed the case file provided by MET Parking Solutions.

 

As this is a matter of law and is a standard POPLA consideration when considering if POFA applies as was raised in your appeal, POPLA must apply the law to determine if schedule 4 of POFA applies.

 

You advise POPLA to look at the maps provided by both parties submissions.

 

You explain that whether airport land is under statutory control is not something a registered keeper has to know and raise specifically and it is more than enough for the appellant to say keeper liability does not apply. A POPLA assessor must then consider POFA whether an appellant raises this or not.

 

You state that assessors were retrained on this after another complaint one year ago and your case is the same

 

You advise the assessor is wrong to not apply POFA correctly to your appeal and to blame you for not using the exact phrase until the comments stage is to misapply POFA on airport land.

 

It is worth explaining that my role is not to determine if the decision is correct, but to establish if the assessor has failed to follow the correct process and identify whether a procedural error has occurred.

 

In this instance, you are correct in stating that airport land is not relevant land and as such, POFA does not apply and I agree that the assessor is incorrect in considering POFA during this assessment.

 

The Airports Act1986 confirms that Stansted Airport is an Airport and Highways Authority and this site falls under statutory control and as such, MET Parking can only pursue the driver and it cannot use POFA to transfer liability to you as the registered keeper.

 

I note in your initial appeal to POPLA you state: “….This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay MET (not that a keeper can be liable anyway on non-relevant land and MET cannot enforce byelaws themselves)…”.

 

Therefore, while you did not elaborate this in your appeal, you did provide more detail at the comments stage and as such, the assessor is wrong to state you raised new grounds. It is clear on reviewing your case and comments this is an expansion on your initial grounds of appeal and therefore, the assessor should have addressed this within the decision.

Having reviewed your case, while the assessor has misapplied POFA in this instance, it is clear that the assessor has considered all of the evidence provided. 

 

In order to improve the quality of future appeal decisions, I will, of course uphold your complaint and provide the relevant feedback to the assessor. However, as all of the evidence provided has been considered, no procedural error has occurred and therefore, the outcome will not change.

 

I am sorry that your experience of using our service has not been positive. However, POPLA’s involvement in your appeal has now ended and this response concludes our complaints process. It will not be appropriate for us to correspond further on this matter and all further correspondence will be noted on your case, but not responded to.

 

You are of course, free to pursue this matter further, through other means, such as the Courts. For independent legal advice, please contact Citizens Advice at: www.citizensadvice.org.uk or call 0345 404 05 06 (English) or 0345 404 0505 (Welsh).

 

Yours sincerely,

 

(Removed by Forum Team)​​​​ POPLA Support

kryten3000

They'll do anything to avoid changing a decision.  Blaming the appellant for not including the full information and then disallowing comments as a "new ground".  Shows that POPLA is not fit for purpose.

Coupon-mad

At least the POPLA Complaints team sort of (grudgingly, it reads) admitted that the Assessor was wrong yet again about Airport land.

Do we go to CAB? 

Certainly NOT.

Sadly, they start from a viewpoint that a 'debt' is owed and some of their current guidance is plain wrong.

I'd send that POPLA admission (that they got the decision wrong) to the complaints email of MET Parking and tell them that POPLA has upheld your complaint and as such, you expect the PCN to be cancelled.

If they refuse, complain to the BPA.

Ignore DR Plus completely.