Popla appeal

I've added another two points I'm not sure the rest are suitable to my case.
How is this edit? Thanks for all your help everyone !

Dear POPLA Assessor,

Re: Gemini Parking Solutions, parking charge notice number: ____________
Vehicle registration number: ____________

POPLA Reference number: ____________

1. Poor and inadequate signage
2. No evidence of landowner Authority
3. The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.
4. Amount demanded is a penalty.


1.The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.
In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:
http://imgur.com/a/AkMCN
In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.
Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:
http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg
This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and'agreement on the charge' existed.
Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.
It is vital to observe, since 'adequate notice of the parking charge' is mandatory under POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.
This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''
From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.
The letters seem to be no larger than .40 font size going by this guide:
http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx
"When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''
...and the same chart is reproduced here:
http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html
''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.
''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''
So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.
This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:
http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html
This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.
So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

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

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).
Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.
Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

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

3.The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.

Paragraph 21.1 of the British Parking Association Code of Practice (CoP) advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The CoP requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

Gemini Car Parks’ signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside the car park.
It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.
In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

and Paragraph 69: Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.
Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

.legislation.gov.uk/uksi/2008/1277/contents/made

Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a) the commercial practice omits material information,
(b) the commercial practice hides material information,
(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,
and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''
It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.

4.Amount demanded is a penalty

Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

Just received this, asking to reply within 7 days, what should I respond with??..

Operator Name Gemini Parking Solutions London Ltd
Operator Case Summary
A Parking Charge Notice (PCN) was issued to vehicle registration ........ on the 06/2017 at the location Chase Farm Hospital, The Ridgeway, Enfield, Middlesex EN2 8JL for the contravention “Failure to Pay for the Duration of Stay”.

On the date of contravention, there was no payment allocated to the above vehicle registration. This indicates that 40 minutes of motorist`s stay remains unpaid for, hence the PCN was issued.

I have noted appellant`s comments regarding insufficient signage. However; please, see the site images file. I am satisfied that there is a clearly and prominently displayed signage at the entrance and throughout the car park. These signs advise on the terms and conditions of parking, parking tariffs and location of payment machines. I am therefore unable to consider appellant`s claim.

Please be advised that there are two payment machines available to motorists, one is right outside the car park and the other one is on the ground level in the stairwell. Both machines accept cash and card payments. Motorists can also pay by phone using RingGo facility or online on https://www.paytopark.co.uk

In regards to appellant`s comments regarding No Landowner Authority, please, see the client agreement attached. I am satisfied that this agreement authorises Gemini to manage the car park and enforce the regulations on behalf of the client.

In regards to appellant`s comments regarding ANPR, please, see the images of the site and signage displayed at the above location. The signage displays ANPR logo and advises that the car park is operated by ANPR. I am satisfied that the signage complies with BPA requirements.

With regards to your comments about the parking charge amount claim and loss, I refer to the judgment of the Court of Appeal in ParkingEye Limited v Beavis:

Key points:
1 The parking charge (£85, reduced to £50 if paid within 14 days) was considered to be a deterrent to overstaying, but the intention to deter was not sufficient to invalid the term of the contract with the driver (or licence – there is some discussion in the judgment that it might be a licence or a contract). In order to invalidate the contract (or licence) the parking charge would have to be extravagant and unconscionable and the charge made in this case was considered to be fine. The Judges did not say what amount of parking charge would be extravagant and unconscionable (and therefore not enforceable);
2 The parking charge made in this case was not a penalty, and the issue of genuine pre-estimate of loss is not relevant
3 There is no need to graduate the amount of a parking charge after an initial free period of parking has expired;
4 Local authorities make similar parking charges and there is no reason why the private parking industry can’t;
5 A parking charge is an acceptable way to encourage turnover in car parks and to prevent motorists from leaving their cars for extended periods of time;
6 Parliament has supported (via the Protection of Freedoms Act) that such parking charges could be made so long as they are brought to the attention of the motorists at the time of use of a car park; and
7 The Court has granted permission to appeal to the Supreme Court, but Mr Beavis may not wish to do so given that the judgment is so strongly in favour of the parking industry.

Should you wish to read the full script, you can do so using the following link:
http://www.britishparking.co.uk/News/british-parking-association-says-government-could-go-further-by-regulating-parking-on-private-land?_cldee=aW5mb0BnZW1pbmlwYXJraW5nc29sdXRpb25zLmNvbQ%3d%3d
The motorist failed to recognise the parking terms and conditions and made an assumption without checking regulations set out. It is the responsibility of the driver to be aware and comply with the restrictions at all times.
The above location is private property and is managed by Gemini Parking Solutions London Ltd on behalf of the land owner. Motorist has parked within restricted area which is owned by our client. When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is therefore the motorist’s responsibility to ensure that he or she abides by the conditions of parking at all times.

As displayed within the signage by staying at the location, the motorist accepted all of the prevailing terms and conditions of the parking contract including the charges for the breach of that contract. These signs offer the parking contract to the motorist and sets out the terms and conditions of the parking and upon which by remaining at the location, the motorist has agreed to be bound by these terms and conditions clearly show the amount which will become payable if the terms and conditions are breached.
Gemini Parking Solutions fully complies with the guidelines set by that of the British Parking Association who are the regulating body for the parking industry.
We find that, by failing to comply with the site regulations, the motorist became liable for a parking charge notice, in accordance with the terms of parking displayed and we are satisfied that this charge has been issued correctly. The motorist parked outside of the set terms and conditions of the site and as a result the appeal was unsuccessful as the representations did not make sufficient grounds.

I can't copy the evidence to upload it any reason why

I have looked up other peoples responses and have edited accordingly, can I get some advice on whether this would be suitable enough?

In response to the "evidencepack" Gemini have submitted:


Gemini Have submitted a ‘evidence’ pack in support of their speculative anddisputed invoice. I do not intend to address each and every point they haveraised in detail as their submission is clearly a quickly hashed template, muchof which is repetitive or indeed irrelevant to the matter at hand.

In making their assessment I ask the POPLA assessor to consider the followingin further support of my original POPLA appeal.

1. There is no Genuine Pre-estimated of Loss breakdown included to show howthey have come up with £100: As business costs are not losses and they cannotbe passed down to a motorist as GPEOL. Gemini seem to infer that it is up to meto demonstrate how their £100 is not a GPEOL - I am not sure this is possibleand is any case a moot point as the burden of proof is upon Gemini todemonstrate the loss that has occurred as a result of the alleged breach.Despite submitting this huge 'evidence' pack they have failed to do this.



2. There seems to be no valid copy of anunredacted contract included between Gemini and the Car Park, which couldinclude information about 'money changing hands' in the contract - thus hidinginformation that could be relevant to the costs calculation fails to meet thestrict proof of contract terms needed.



3. Signage- The colours blue and yellow arespecifically mentioned in the BPA Code of Practice as the sort of bright colourcontrasts to avoid. Use of capital letters and mixing large and small font arealso deemed unclear as far as signage is concerned. Gemini have mixed this intotheir signs despite the fact they appear to be new and should match therequirements of the BPA CoP.
Furthermore it simply would not be possible to read any signs whilst in amoving car, and certainly not have read them sufficiently to have be deemed tofully understand the T&C's to which it is alleged I agreed as theregistered keeper of the vehicle. Gemini 's own 'evidence' photos show that anumber of the signs are perpendicular to the flow of traffic and as the drivernever left the car park wouldn’t have seen the signs. The anpr signage theyhave is very small and out of sight to moving vehicles.


Regards