Another Stansted NSL Parking / Stopping contravention

Choomba

Hey guys,

First off, thank you all for providing this wealth of information on the forum.
As many others, I'm fighting a 'parking contravention' at Stansted, ('Parking in a restricted street during prescribed hours.')

I have appealed on their site first without any success, their response is below:

Spoiler Warning

Thank you for your email concerning the above Parking Charge Notice (PCN) issued
Stansted Airport by NSL Ltd on behalf of Manchester Airport Group.

The PCN was issued for the following contravention: Parked in a restricted location during
prescribed hours.
After careful consideration, I regret to inform you that the PCN will not be cancelled on this occasion as the PCN was issued correctly.
As or the above vehicle came to a halt without a valid external reason including traffic
pedestrians walking the vehicle is said to have parked and as such is subject to the
parking restrictions in place.
Parking is not permitted where the above vehicle was observed via CCTV capture
irrespective of duration. Whilst I appreciate the circumstances you have described I am
unable to accept them as a valid reason to cancel the above PCN.
It is the responsibility of the driver to be aware of and to adhere to the relevant signage, or
to seek alternative parking arrangements to ensure the vehicle is parked without
contravening the restrictions in force.
You have advised that as the above vehicle was not parked that the notice be cancelled
however as you will have seen when you accessed the online appeal portal there is clear
CCTV evidence available showing the above vehicle parked, along with other stills taken
from that video so I must advise I cannot cancel the notice on this ground. I have included
an image taken from the footage which is available on the web portal at the end of this
correspondence. The image shows the vehicle stopped at a bus stop which is not
designated parking area.

NSL Limited are members of the British Parking Association Approved Operator Scheme
(AOS) in accordance with the requirements of the Protection of Freedoms Act.
In respect to your comments regarding the Protection of Freedoms Act 2012 and the
Notice to Keeper, I must advise you that the act covers the principle of 'Keeper liability' in
specific circumstances, we believe that all those requirements have been met and the
registered keeper of the above vehicle remains liable to Pay the Notice in line with the
aforementioned Act. Furthermore, the Notice to Keeper meets all the requirements of the
Protection of Freedoms Act and those of the British Parking Association 's AOS.
There is signage in place at this location informing motorists of the restrictions in place. I
can confirm that sufficient signage is in place and that it meets statutory/BPA AOS
requirements.
I have inserted below examples of the signage in place across the airport roadways:

In conclusion, a full review of all the evidence regarding the issuing of the PCN has taken
place, and, in light of the findings I am unwilling to cancel the Notice. Therefore, please
make arrangements to pay the balance £60.00 in full within the next 14 days.
You can pay by credit or debit card by telephoning 033 3320 2981 or by using the online
payment service at https://stansted.mysecurepay.co.uk/.

You have now reached the end of our internal appeals procedure. If you still feel that your
appeal has not been adequately considered, you have the option to ask for an
independent review to be undertaken by the Parking on Private Land Appeals (POPLA) by
visiting the following website http://www.popla.org.uk/ within 28 days of the date of service
of this notice.
Your POPLA verification code is: <CODE>.
I must however advise you that should you choose to request a review by POPLA the full
charge of £100.00 will become applicable to the above case minus any payments
received already.
If you choose to do nothing, after 35 days we will seek to recover the monies owed to us
via our debt recovery procedures and may proceed with Court action against you. This will
lead to further charges being added.

I am sorry that this is not the outcome you were hoping for.
Yours sincerely
Parking Services
For and on behalf of NSL Ltd and
MAG London Stansted Airport

I have drafted a POPLA appeal according to all the resources I could find on this forum - I was wondering if you could give me any further pointers or if this is OK. I have marked a couple of lines (with '??') which I feel like might be too much ('concluding' things, not legalese enough, etc) and I wonder if I should rather remove/reword those. Similarly I marked the last two points that I grabbed out of another POPLA appeal, which I wasn't 100% sure is relevant in this case.

Spoiler Warning

POPLA Verification Code: [INSERT]

PCN Reference: [INSERT]

Vehicle Registration: [INSERT]

Operator: NSL Ltd

Location: London Stansted Airport

I am the registered keeper of the above vehicle.

I am appealing as keeper only. I am under no obligation to identify the driver and I decline to do so. Nothing in this appeal should be taken as an admission as to the identity of the driver.

I respectfully submit that this Parking Charge Notice must be cancelled because the operator has failed to establish any lawful basis upon which liability may be transferred from the driver to the registered keeper. The operator's entire case relies upon the assertion that Schedule 4 of the Protection of Freedoms Act 2012 ("PoFA") applies. That assertion is incorrect.

#1) – The operator cannot invoke keeper liability because Stansted Airport is not "relevant land" for the purposes of Schedule 4 of the Protection of Freedoms Act 2012

The operator's rejection letter expressly states:

"The registered keeper of the above vehicle remains liable to pay the Notice in line with the aforementioned Act."

This statement forms the foundation of the operator's case. ??1

However, Schedule 4 of the Protection of Freedoms Act 2012 only permits liability to be transferred from the driver to the registered keeper where the parking event occurred on "relevant land".

Land which is subject to statutory control is expressly excluded from the definition of relevant land.

London Stansted Airport is subject to statutory control through airport byelaws. Consequently, it cannot constitute relevant land for the purposes of Schedule 4.

The operator's rejection letter contains no evidence whatsoever demonstrating that the location in question is exempt from the airport's statutory controls. Instead, the operator merely asserts that PoFA applies.

An assertion is not evidence. ??2

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.

Because the location is within Stansted Airport, the burden rests with the operator to demonstrate that the specific area where the vehicle was observed falls outside any area subject to statutory control and therefore qualifies as relevant land.

The operator has produced no such evidence. ??3

As the operator has failed to establish that the location is relevant land, the provisions of Schedule 4 cannot apply and keeper liability cannot arise.

Accordingly, only the driver could potentially be liable.

As the operator has not identified the driver and I have not been required to identify the driver, this appeal must be allowed.

#2) – POPLA has previously accepted that Schedule 4 keeper liability cannot arise at Stansted Airport

This issue is not new. ??4

The precise question of whether NSL can rely upon Schedule 4 of the Protection of Freedoms Act at Stansted Airport has already been considered through POPLA's own complaints process.

Following a complaint concerning a previous Stansted Airport appeal, a POPLA Coach reviewed the assessment and reached the following conclusion:

"The crux of your complaint is that the original assessment, and subsequent response to your initial complaint, incorrectly concluded that the parking operator was correct in pursuing the charge against the registered keeper, having transferred the liability in accordance with schedule 4 of the Protection of Freedoms Act 2012 (PoFA)."

The POPLA Coach then stated:

"I have taken the opportunity to review the case in its entirety, my findings are as follows:

Schedule 4 of PoFA is clear that keeper liability only applies on relevant land. Relevant land excludes land where parking is subject to statutory control.

Upon review, I am satisfied that Stansted Airport is subject to statutory control and therefore is not relevant land for the purposes of PoFA.

Therefore, I am satisfied that the operator could not transfer liability for the parking charge from the driver to the registered keeper under Schedule 4 of PoFA.

Accordingly, the assessment was incorrect."

Those findings go directly to the issue before POPLA in the present case.

The operator is once again asserting that PoFA applies. ??
The operator is once again asserting that the keeper is liable. ??
The operator is once again seeking to transfer liability from an unidentified driver to a registered keeper. ??5

The POPLA Coach's findings make clear that such a transfer of liability is not possible where Stansted Airport land is subject to statutory control.

The POPLA Coach further stated:

"However, I must point out that POPLA is a single stage, determinative process, and there is no recourse to reconsider the appeal, or change the outcome. That said, please be assured, I will use the learning from this case as part of our continuous improvement initiatives."

The significance of those findings is that POPLA has already recognised that previous assessments incorrectly applied PoFA keeper liability at Stansted Airport.

I respectfully submit that the same error not be repeated in this case.

The operator's rejection letter relies explicitly on PoFA. If POPLA accepts that Stansted Airport is not relevant land for the purposes of Schedule 4, the operator's case against the keeper necessarily fails. ??6

The full quote of the relevant POPLA Coach reply is the following:

"Dear xx

Thank you for your email, which has been passed to me to investigate, in conjunction with John Gallagher, the Lead Adjudicator. Please accept my sincere apologies for the delay of this response.

The crux of your complaint is that the original assessment, and subsequent response to your initial complaint, incorrectly concludedthat the parking operator was correct in pursuing the charge against the registered keeper, having transferred the liability in accordance with schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

I have taken the opportunity to review the case in its entirety, my findings are as follows:

In their original assessment, the assessor concluded that the identity of the driver had not been clearly established and therefore they considered whether the provisions of PoFA had been met in the parking operator’s attempt to transfer liability to the registered keeper. I can see from their report rationale that they considered the PCN to be PoFA complaint.

The assessor considered the appeal, not under byelaws, but under contract law based on the fact that the parking operator issued a parking charge notice, rather than a penalty charge notice. Further, in my view, the confirmation letter from the Landowner, addressed to the DVLA, stating they had contracted the parking operator to undertake road enforcement through the issue of parking charge notices, persuaded the assessor that the landside roads of the airport boundary were relevant land.

I disagree. I am satisfied that the Airports Act 1986 indicates that Stansted Airport Limited, as an Airport Authority and Highways Authority, fall under statutory control. This is key in making the determination over PoFA compliance.

As you correctly point out in your email, under section 3 of schedule 4 of PoFA, relevant land means any land other than land on which the parking of a vehicle is subject to statutory control. This effectively means that in this case, the parking operator may only pursue the driver of the vehicle.

Having reviewed both the appeal and your complaint, it is evident that a mis-assessment has occurred. The assessor, when reviewing the requirements of PoFA should have recognised that the airport roads were not relevant land and allowed the appeal. This is because the PCN failed the ‘PoFA test’.

Clearly we got this decision wrong, and I can only apologise for the undoubted inconvenience caused by the error. Thank you for bringing this to my attention.

I am sorry that your experience of using our service has not been as positive as we would have liked. However, I must point out that POPLA is a single stage, determinative process, and there is no recourse to reconsider the appeal, or change the outcome. That said, please be assured, I will use the learning from this case as part of our continuous improvement initiatives

Yours sincerely

xxxx

POPLA Coach "

#3) – The Notice to Keeper itself demonstrates that the operator is attempting to rely on Schedule 4

The Notice to Keeper states:

"As we do not know the driver's name or current postal address, if you were not the driver at the time, please provide us with the driver's full name and current postal address."

The Notice then continues:

"Should you identify someone who denies they were the driver, we may pursue you for any amount that remains unpaid."

This wording demonstrates that the operator is attempting to reserve a right to pursue the keeper even where the driver has not been identified.

Such wording only has meaning if the operator is seeking to rely on keeper liability. However, keeper liability under Schedule 4 can only arise on relevant land.

Because Stansted Airport is subject to statutory control, no statutory mechanism exists for the operator to transfer liability from driver to keeper.

Accordingly, the wording relied upon by the operator cannot create liability where Parliament has expressly withheld that right.

The operator cannot simply assert that a keeper is liable. It must identify a lawful basis for that liability.

No such lawful basis exists in this case. ??7

#4) – The operator has failed to prove that the location falls outside statutory control

The operator bears the burden of proof.

The operator has not produced:

• a plan identifying the exact location of the alleged contravention;

• a boundary plan showing the extent of any byelaw-controlled land;

• evidence that the precise location falls outside the airport byelaw regime;

• evidence demonstrating that the land qualifies as relevant land under Schedule 4;

• any legal analysis explaining how keeper liability could arise on airport land subject to statutory control.

Instead, the operator merely states that PoFA applies.

That is insufficient.

Where statutory control is in issue, POPLA should require strict proof.

Absent such proof, POPLA cannot be satisfied that the operator is entitled to rely upon Schedule 4.

#5) – The operator has not discharged its burden regarding signage and contractual terms

The operator's evidence consists of generic examples of signage.

The operator has not demonstrated where those signs were situated relative to the vehicle.

The operator has not demonstrated the driver's approach route.

The operator has not demonstrated that the signs were visible from a moving vehicle.

The operator has not demonstrated that the terms were sufficiently prominent.

The operator has not demonstrated that a driver would have had a fair opportunity to read and understand the terms before the alleged contravention occurred.

While this appeal is primarily concerned with the absence of keeper liability, I submit that the operator's evidence regarding signage is generic in nature and falls short of proving that a legally enforceable parking contract was created at the specific location alleged.

??#6) 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.’

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.

??#7) The amount demanded is a penalty and not a Parking Charge.
The amount demanded is a penalty and is punitive and contravenes the Consumer Rights Act 2015. £100 is excessive given the very short period that the vehicle was stopped. The Parking Eye and Beavis case was characterised by clear and ample signage where the motorist had time to read and consider and also decide whether to accept or not. In this case signage is neither clear nor ample and the motorist has not time to read the signage or consider it as the charge was applied instantly the vehicle stopped.

Accordingly, I respectfully request that POPLA allow this appeal and direct NSL Ltd to cancel the Parking Charge Notice.

Am I okay to go ahead with this, or are there any major changes needed? Is this too much, too little?
Attached are also the two sides of the Notice to Keeper from NSL (sorry for the shoddy quality).

Thanks again for all the help

Car1980

Fine. You could add all the reasons the NtK isn't POFA compliant as well.

Terrifying that they can a) operate unlawfully on the land in the first place and b) that such a large company as NSL can't even put together a NtK that adheres to the very simple legislation that literally gives them a checklist to follow.

yarpsnehpets

I could be that the location in inside the area under statutory control and therefore they cannot mention PoFA?

Gr1pr

https://forums.moneysavingexpert.com/discussion/comment/82031764#Comment_82031764

I agree, plenty of NSL Stansted Airport cases on here over the years, especially ones where POPLA decided that Pofa2012 applied, when it doesn't

So if its Airport land, that is why Pofa2012 isnt mentioned, because it shouldn't be mentioned

Not relevant land, no keeper liability

ChirpyChicken

Easy win at popla these days

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/82031866#Comment_82031866

Yep should be easy as long as the driver is never admitted.

Choomba

Thank you! Submitted it, pretty much as posted what's in the draft - I removed the last point after all because I couldn't really put that together nicely.
Anyway, thanks again for the POPLA resources and all that, will keep you posted on the end result.