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  • FIRST POST
    • alvaronistal
    • By alvaronistal 3rd Oct 17, 2:50 PM
    • 10Posts
    • 4Thanks
    alvaronistal
    PCN Gemini - Copper Box Arena
    • #1
    • 3rd Oct 17, 2:50 PM
    PCN Gemini - Copper Box Arena 3rd Oct 17 at 2:50 PM
    Hey everyone,

    So I received a windscreen PCN from Gemini at Copper Box Arena, a No Parking area (where everyone parks). Anyway, I appealed to them on day 26, they rejected the appeal the next day saying the below:
    You recently contacted us to appeal the Parking Charge Notice (PCN) ____ that was issued to the driver of vehicle registration _____ on _____ at Copper Box Arena, Queen Elizabeth Olympic Park, London, E20 3HB. This PCN was issued because the vehicle broke the following parking regulation: Parking in a No Parking area.

    We noted your comments that there are no admissions to who the driver is and require a POPLA code. Please be advised that members and guests attending the Copper Box Arena have to register their vehicle at reception in order validate their parking.

    We have carefully considered your appeal. Unfortunately, for the reasons below, your appeal has been unsuccessful.
    • There are clearly visible signs close to where the above vehicle was parked advising that it is a No Parking area.
    • Please be advised that members and guests attending the Copper Box Arena are required to register on a log, to validate their stay. Our officers check the log before a PCN is issued, and as the above vehicle was not found on the log at the time, hence the PCN was issued. We are satisfied that this was the correct action. Unfortunately, we cannot take mitigating circumstances into account.
    • Unfortunately, the mitigating circumstances cited as part of your appeal do not provide sufficient evidence that this PCN was issued incorrectly.
    When parking on private land, the motorist agrees to abide by any clearly displayed conditions of parking in return for permission to park. This location is private property and is managed by Gemini Parking Solutions London Ltd on behalf of the land owner.
    Gemini Parking Solutions fully complies with the guidelines set by the British Parking Association. Please note that photographic evidence is taken with every PCN that is issued.
    I have read and collated a POPLA appeal, although I believe that I'm ahead of time, because today is day 7 after the rejection letter from Gemini. I haven't received any NTK at my address, I just have the windscreen PCN.

    Here's my draft with the points taken from other posts in the forum. Should I make any changes to it or add any points? Also, when should I submit the POPLA appeal?

    Thanks!
    I am writing to you to lodge a formal appeal against a parking charge notice received by me, registered keeper of the vehicle in question from Gemini Parking Solutions Ltd at Copper Box Arena, QE Olympic Park. I was not the driver. I contend that I am not liable for this parking charge on the basis of the below points:

    1) A compliant Notice to Keeper was never served - no Keeper Liability can apply.

    This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

    The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

    ''Right to claim unpaid parking charges from keeper of vehicle:
    4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

    (a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

    *Conditions that must be met for purposes of paragraph 4:
    6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

    The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly, I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

    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

    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. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.!

    In this case, no other party apart from an evidenced driver 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 NTK.

    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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 to show that (as an individual) I have personally not complied with terms in place on the land!and!show that I am personally liable for their parking charge. They cannot.

    Furthermore, the vital matter of full compliance with the POFA 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 cannot transfer the liability for the charge using the POFA.!

    This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:!
    ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

    3) 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:

    link

    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:

    link

    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 the 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:

    link

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    link

    ''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:

    link

    ''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:

    link

    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.

    4) 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
Page 1
    • Coupon-mad
    • By Coupon-mad 3rd Oct 17, 5:59 PM
    • 51,855 Posts
    • 65,486 Thanks
    Coupon-mad
    • #2
    • 3rd Oct 17, 5:59 PM
    • #2
    • 3rd Oct 17, 5:59 PM
    Here's my draft with the points taken from other posts in the forum. Should I make any changes to it or add any points?
    Perfect, good research, just how the forum is intended for the majority of cases, as self-help.

    Also, when should I submit the POPLA appeal?
    I would aim for day 28, because the POPLA code lasts for just over 30 days (and that time will get you safely past day 56 since the parking event).

    The only thing I might add would be that a charge from a non-landowner for 'Parking in a No Parking area' can only be an unrecoverable penalty because there is no contractual offer/licence to park, unlike in the Beavis case. Indeed the Judges at the Supreme Court said:

    ’'But it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.’’

    and at 190:

    ''Mr Beavis… was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract.''

    No licence, no offer, no contract, no agreement on the charge = penalty rule remains engaged.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • alvaronistal
    • By alvaronistal 29th Oct 17, 7:11 PM
    • 10 Posts
    • 4 Thanks
    alvaronistal
    • #3
    • 29th Oct 17, 7:11 PM
    • #3
    • 29th Oct 17, 7:11 PM
    Hey Coupon_Mad, thanks for your help. I forgot to mention it...

    So Gemini replied through POPLA with a ton of photos, including a map where their signs are placed, some photos in-situ of the signs, and a set of photos with my car in perspective to the signs, pointing with a circle where are they are, which helps making my point about how they can't be seen, but I can't attach the photos to the post...

    One thing I asked them on my claim and they didn't do is send their contract, which I believe is very important.

    Also, they are trying to make a point about the NTK not being served, but I haven't found anything in the forum saying anything like it.

    Find their reply below:

    A Parking Charge Notice (PCN) was issued to vehicle registration ____ on the ____ at the location Copper Box Arena, Queen Elizabeth Olympic Park, London, E20 3HB for the contravention “Parking in No Parking area”.

    There are a number of clearly displayed signs at the entrance and throughout the area advising on the site regulations and parking restrictions in place. It stipulates within the signage that the area is a No Parking Area and vehicles are not permitted to park there. Vehicles are also not permitted to park on double yellow lines or hatched lines at any time.

    I have noted appellant's comments that the Notice to Keeper has never been served. I can confirm that the PCN was issued to the driver of the vehicle who is liable for the Parking Charge. The Notice to Keeper can only be issued after 28 days of the PCN issue date. I can confirm the PCN was issued on 01.09.2017 however; from 25th-26th September 2017, the PCN was on hold as an appeal had been submitted. Once responded, the PCN was taken off hold and on 10.10.2017, Gemini requested keeper details from the DVLA. These were received on 12.10.2017. As the appellant submitted an appeal to POPLA, the PCN has been placed on hold again which is why Gemini was unable to issue the Notice to Keeper. Once the Notice to Keeper is issued, the registered keeper will be provided with 28 days time frame to either make a payment or provide driver details if he was not the driver. If after 28 days from the date of Notice we have not received full payment or driver details, the registered keeper becomes liable for the Parking Charge Notice.

    Therefore in response to appellant`s comments 1. and 2., I can confirm that it is the driver that is liable for the PCN at this time and we do not held the appellant (registered keeper) liable for the charge.

    In regards to appellant`s comments on the signage, please, see the photographic evidence, site images and site map. I am satisfied that there are a number of clearly displayed signs at the entrance and throughout the area advising that the area is a No Parking Area and vehicles are not permitted to park there. As an internal rule between the leisure centre and its members, motorist are permitted to park in the area given that they register their vehicle on a log at the reception of the leisure centre. Our enforcement officers observe the log on their arrival. If a vehicle has not been registered on the log, the vehicle was unauthorised to park in the area as the area is clearly signposted as No Parking Area.

    In regards to appellant`s comments 5. that the charge is in fact a penalty, this is not true. 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.

    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.

    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.
    Any tips for rebating their comments? I need to send the reply by Tuesday, and the only point I can think of rebating is the lack of contract, and maybe the sign locations (not anywhere near my car).

    Thanks in advance everyone!
    Last edited by alvaronistal; 29-10-2017 at 7:13 PM.
    • KeithP
    • By KeithP 29th Oct 17, 7:25 PM
    • 4,788 Posts
    • 3,147 Thanks
    KeithP
    • #4
    • 29th Oct 17, 7:25 PM
    • #4
    • 29th Oct 17, 7:25 PM
    In your POPLA appeal, did you include the point made by C-M in post #2 that the sign is prohibitive, therefore no contract is on offer or possible?
    .
    • alvaronistal
    • By alvaronistal 29th Oct 17, 7:34 PM
    • 10 Posts
    • 4 Thanks
    alvaronistal
    • #5
    • 29th Oct 17, 7:34 PM
    • #5
    • 29th Oct 17, 7:34 PM
    Hey there KeithP,

    Unfortunately, no. I did include all of the Signage point in post #3 by C-M.
    Last edited by alvaronistal; 30-10-2017 at 10:46 AM.
    • alvaronistal
    • By alvaronistal 30th Oct 17, 10:52 AM
    • 10 Posts
    • 4 Thanks
    alvaronistal
    • #6
    • 30th Oct 17, 10:52 AM
    • #6
    • 30th Oct 17, 10:52 AM
    It's not easy to find a case in the forum in which the Parking Company didn't send their contract, or at least something attaching them to the landowners... No matter how many of them I read!

    But am I right to think that them not sending the contract is the main winning point?

    Thanks again,
    Alvaro
    • alvaronistal
    • By alvaronistal 31st Oct 17, 4:50 PM
    • 10 Posts
    • 4 Thanks
    alvaronistal
    • #7
    • 31st Oct 17, 4:50 PM
    • #7
    • 31st Oct 17, 4:50 PM
    I will be submitting a simple reply to their comments later today. See below:

    Comments to Evidence:
    A. No evidence of Landowner Authority
    B. Inadequate signage and location of signs.

    _____

    A. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice- an unredacted copy of the contract with the landowner. Failed to provide evidence.

    B. Inadequate signage and location of signs.
    As shown in the photos from document “_____.pdf” on pages 3 and 4, the size and location of the closest signs to where the cars park make it clear that it’s the signs are not readable.
    Anything else I could add or I should change?

    Thanks,
    Alvaro
    Last edited by alvaronistal; 31-10-2017 at 4:51 PM. Reason: Editing out sensitive data
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