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  • FIRST POST
    • crossone
    • By crossone 1st Dec 17, 11:35 AM
    • 26Posts
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    crossone
    Comments on draft POPLA appeal please - Failure to pay for duration of stay
    • #1
    • 1st Dec 17, 11:35 AM
    Comments on draft POPLA appeal please - Failure to pay for duration of stay 1st Dec 17 at 11:35 AM
    Thank you so much for this excellent resource. Any thoughts on the below most welcome.

    NTK arrived within 14 days. They have amended the wording since some of the above posts, but it still states "if within 28 days we have not received full payment or driver details" (my emphasis) which I know is non-compliant wording.

    The car park in question allows 3 hours free parking, thereafter a charge per hour is payable. But payment can only be made once the 3 hours have expired and only by mobile phone. What if you are unavoidably held up and don't own a mobile or the battery is flat at the end of the 3-hour period? I have never before heard of a car park where cash payment is not possible. This seems to be a potential discrimination issue to me (older drivers statistically less likely to own a mobile phone).

    Any thoughts on offering to pay the charge for the extra time late?
    Last edited by crossone; 18-12-2017 at 3:08 PM.
Page 1
    • nosferatu1001
    • By nosferatu1001 1st Dec 17, 11:43 AM
    • 1,692 Posts
    • 1,906 Thanks
    nosferatu1001
    • #2
    • 1st Dec 17, 11:43 AM
    • #2
    • 1st Dec 17, 11:43 AM
    Which PPC?
    If you are held up - this is frustration of contract
    They have to accept cash, arguably, if they are claiming a debt accrues otherwise.
    • crossone
    • By crossone 1st Dec 17, 12:52 PM
    • 26 Posts
    • 17 Thanks
    crossone
    • #3
    • 1st Dec 17, 12:52 PM
    • #3
    • 1st Dec 17, 12:52 PM
    Gemini

    Any other thoughts and comments gratefully received.

    Keeper is minded to offer to pay for one hour's additional parking without giving away identity of driver
    • nosferatu1001
    • By nosferatu1001 1st Dec 17, 12:54 PM
    • 1,692 Posts
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    nosferatu1001
    • #4
    • 1st Dec 17, 12:54 PM
    • #4
    • 1st Dec 17, 12:54 PM
    Not a hope that will be worth doing
    Have you read the newbies thread, which gives you a precise route to follow, based on the PPC?
    • crossone
    • By crossone 1st Dec 17, 3:17 PM
    • 26 Posts
    • 17 Thanks
    crossone
    • #5
    • 1st Dec 17, 3:17 PM
    • #5
    • 1st Dec 17, 3:17 PM
    Have you read the newbies thread, which gives you a precise route to follow, based on the PPC?
    Originally posted by nosferatu1001
    Yes, and I have located the template appeal to PPC based on this being a postal NTK and will adapt that. I was just wondering what else to include.

    Thanks again for your help - there's just a lot to absorb for a newbie
    • nosferatu1001
    • By nosferatu1001 1st Dec 17, 3:34 PM
    • 1,692 Posts
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    nosferatu1001
    • #6
    • 1st Dec 17, 3:34 PM
    • #6
    • 1st Dec 17, 3:34 PM
    The template is a template for a reason.
    The appeal to a PPC is almost never successful, so the template is used to ensure no wrong info is given away, and to not expend time on these parasites.

    Make sure you send the right template. ROUND logo denotes the membership you care about.
    • crossone
    • By crossone 14th Dec 17, 9:53 AM
    • 26 Posts
    • 17 Thanks
    crossone
    • #7
    • 14th Dec 17, 9:53 AM
    • #7
    • 14th Dec 17, 9:53 AM
    I'm sure it won't surprise anyone advising on this site that my appeal to the PPC was unsuccessful. Am now considering my appeal to POPLA.

    Questions I would be very grateful for any comments on:

    1. Do POPLA usually/always follow previous decisions? My NTK included wording which POPLA have previously held to be inadequate ("within 28 days"). I intend to quote the previous POPLA decision in my appeal.

    2. If my appeal is unsuccessful, does this mean you just pay the full £100 (rather than the discounted £60) or do you have to pay extra costs if the POPLA decision takes more than the 28 days within which payment is due (and after which Gemini have said they will pass the matter to debt collectors/start charging additional costs etc)

    3. I don't live locally to the parking site and won't be able to obtain more photos. So will be relying on the photo of the signage supplied by Gemini (which does appear to be accurate). Is this fatal?

    Thanks so much - I will post my draft for comments please
    • KeithP
    • By KeithP 14th Dec 17, 11:59 AM
    • 5,641 Posts
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    KeithP
    • #8
    • 14th Dec 17, 11:59 AM
    • #8
    • 14th Dec 17, 11:59 AM
    3. I don't live locally to the parking site and won't be able to obtain more photos.
    Originally posted by crossone
    Why don't you ask here if anyone is local to the car park who could perhaps get pics for you?

    Have you searched the forum for the car park where you might find pics already?

    Have you used google looking for pics?
    .
    • crossone
    • By crossone 14th Dec 17, 2:12 PM
    • 26 Posts
    • 17 Thanks
    crossone
    • #9
    • 14th Dec 17, 2:12 PM
    • #9
    • 14th Dec 17, 2:12 PM
    This is the Beckenham Gym/Gambado carpark. I understand they changed their signage in January 2017. I've searched the forum and google without success unfortunately. Very grateful if anyone has or could obtain pictures.
    • crossone
    • By crossone 14th Dec 17, 2:50 PM
    • 26 Posts
    • 17 Thanks
    crossone
    ok I have one - imgur.com/gallery/oxonP

    as you can see, much of the text is illegible
    • KeithP
    • By KeithP 14th Dec 17, 3:14 PM
    • 5,641 Posts
    • 4,339 Thanks
    KeithP
    ok I have one - imgur.com/gallery/oxonP

    as you can see, much of the text is illegible
    Originally posted by crossone
    https://imgur.com/gallery/oxonP

    Can't see anything on that sign about paying £100 or £60.
    If it's there, it is certainly nowhere near as prominent as the £4.00 all day charge.


    There's a Gemini sign on twitter dated Oct 2016:
    https://twitter.com/hashtag/beckenha

    Here's a thread on Pepipoo that might help:
    http://forums.pepipoo.com/index.php?showtopic=105140
    ... although, having now read it, it may not be much help.
    Last edited by KeithP; 14-12-2017 at 3:42 PM.
    .
    • crossone
    • By crossone 14th Dec 17, 4:03 PM
    • 26 Posts
    • 17 Thanks
    crossone
    It's in the small text at the bottom which you can't even read in this image.

    Unfortunately the process has changed since the Pepipoo post and apparently it's just 3 hours for everyone now, irrespective if the driver was visiting the soft play centre (complaint to them already made).

    I am preparing POPLA appeal and all comments on draft will be gratefully received.

    Have I understood correctly that if I lose at POPLA but then pay quickly, my 'worst case' is the full £100 rather than the 'discounted' £60 ie they can't slap on extras at that stage already?

    Thanks for all your help on this
    • waamo
    • By waamo 14th Dec 17, 4:07 PM
    • 2,621 Posts
    • 3,215 Thanks
    waamo
    Gemini don't do court very often.

    http://www.bmpa.eu/companydata/Gemini_Parking_Solutions_London.html

    It is your choice but personally if I lost at POPLA I would see what their next move is rather than jump at paying it.
    This space for hire.
    • KeithP
    • By KeithP 14th Dec 17, 5:58 PM
    • 5,641 Posts
    • 4,339 Thanks
    KeithP
    I agree with Waamo, but surely you are planning to win at PoPLA?

    To that end, there are five other threads on here that mention Gambado.

    This thread: Draft POPLA Appeal - Gemini Parking Solutions contains a comprehensive PoPLA appeal that was successful.

    Shouldn't take much tweaking to make it fit your circumstances.

    Use the forum search facility to find the other Gambado threads.
    .
    • crossone
    • By crossone 15th Dec 17, 4:22 PM
    • 26 Posts
    • 17 Thanks
    crossone
    Thanks - please see my draft POPLA appeal below based on that helpful previous example.

    Very grateful for comments - I appreciate that POPLA should follow their previous decision but grateful for any views on how likely this is in practice

    PCN Number: x x
    POPLA Verification Code: x

    Dear POPLA,

    I write to you as the registered keeper of the vehicle x. I wish to appeal the £100 Parking Charge Notice to Keeper (PCN) issued by Gemini Parking Solutions for ‘Failure to Pay for the Duration of Stay.’!

    I submit the reasons below to show that I am not liable for the parking charge and would be grateful if you would respectfully consider my appeal:-

    1. Gemini Parking Solutions' Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA).
    2. Gemini Parking Solutions has not shown that the individual who it is pursuing is in fact liable for the charge.!
    3. No contract was entered into between Gemini Parking Solutions and the Driver or Registered Keeper
    4. No facility to make a cash payment
    5. The car park had unclear, non-obvious, non-BPA-compliant signage.


    1. Gemini Parking Solutions' Parking Charge Notice To Keeper is not compliant with the Protection of Freedoms Act 2012 (POFA).

    Whilst I am the registered keeper of the car, the driver has never been identified.

    The PCN does not comply with the minimum requirements of paragraph 9 of schedule 4 of the Protection of Freedoms Act 2012 (POFA) and no liability for the keeper can therefore arise.

    The burden of proof lies with the operator to demonstrate that it has issued the PCN correctly.

    I refer to POPLA assessment and decision of 9 March 2017 involving Gemini Parking Solutions (verification code 4160317097) where the Assessor Ms Butler stated:
    !
    “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 the Protection of Freedoms Act (PoFA) 2012 must be adhered to. The operator has provided a copy of the Notice to Keeper sent. As the driver of the vehicle has not been identified, the Notice to Keeper will need to comply with section 9 of PoFA 2012. PoFA 2012 sets out to parking operators that: “2) The notice must – f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— The Notice to Keeper states “We now request this amount is paid using one of the payment methods described overleaf; If within 28 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle”. As such, I am not satisfied that the operator has met the minimum requirements of PoFA 2012 when outlining the period of 28 days beginning with the day after that on which the notice is given. I can only conclude that the Parking Charge Notice (PCN) was issued incorrectly. Accordingly, I must allow this appeal”
    !
    The wording in this PCN is identical to the wording in that assessment, which was found not to meet the minimum requirements of POFA. So, this is a charge that could only be potentially enforced against a known driver.

    2. Gemini Parking Solutions 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. 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.!

    Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court.!

    I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK. Only full compliance with Schedule 4 of the POFA (or evidence that a keeper was the driver) can cause a keeper appellant to be deemed by POPLA 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 (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. Gemini Parking Solutions has failed to do this.

    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.''

    3. No contract was entered into between Gemini Parking Solutions and the Driver or Registered Keeper.

    As Gemini Parking Solutions does not have proprietary interest in the land then I require them to 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 Gemini Parking Solutions 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).

    Gemini Parking Solutions is required to produce evidence that it has the authority to form contracts with drivers on this land or to pursue charges. The signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Gemini Parking Solutions clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract.!

    I contend that Gemini Parking Solutions merely holds a basic commercial licence to supply and maintain confusing signage and to issue 'tickets' as a deterrent to car park users.!

    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

    Furthermore, for the avoidance of doubt, a witness statement to the effect that a contract is or was in place will not be sufficient to provide the necessary detail of the contract terms. Such a witness statement would not comply with paragraph 7 of the BPA Code of Practice as the definition of the exact services provided by Gemini Parking Solutions would not be fully stated.!
    It is not appropriate for a car park such as this to have such a limited amount of signs with such poorly displayed terms, putting the onus clearly on drivers to search carefully for where and how the terms are displayed. It is surely the responsibility of Gemini Parking Solutions to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require Gemini Parking Solutions to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park.

    I request that Gemini Parking Solutions provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific detail including an agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Consumer Rights Act 2015.


    4. No facility to make a cash payment

    There is no facility to make a cash payment at this location. If an operator does not accept cash payment, no debt can accrue. Permitting payment only by mobile phone amounts to indirect age discrimination contrary to the Equality Act 2010 and moreover is impossible in circumstances where the driver either does not have a mobile phone or where the battery has died during the 3-hour free parking period, thereby frustrating any contract in existence (which is denied).


    5. The car park had unclear, non-obvious, non-BPA-compliant signage.

    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. They contain letters in very small writing that are above head height for the average person (this would be around 1.7 metres according to latest research for adults).!

    There was no contract nor agreement on the 'parking charge' at all. 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. The Supreme Court were keen to point out the decision related to that car park and those facts only. 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.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    ://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 and swayed it into holding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

    Here, much of the wording is illegible, particularly given its small size and use of barely visible yellow text against a white background. ‘Adequate notice of the parking charge’ is mandatory under the POFA Schedule 4 and the BPA Code of Practice, but these signs do not clearly mention the parking charge which is hidden in small print.

    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 were 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.''

    Under Lord Denning's Red Hand Rule, the extortionate purported parking 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 BPA Code of Practice would require a parking charge and the terms to be displayed far more transparently, 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 car park at all, I submit that the persuasive case law is in fact Vine v London Borough of Waltham Forest [2000] EWCA Civ 106 where the driver who had not seen the terms was consequently NOT bound by them. This judgment is binding authority from the Court of Appeal 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.

    As a POPLA assessor has said previously in adjudication:

    ‘Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the operator to demonstrate that the signs at the time and location in question were sufficiently clear.’ Gemini Parking Solutions have failed to do this.

    The tiny lettering was not visible (readable) to be seen by any driver entering the car park. This is not mitigating circumstances but failure by Gemini Parking Solutions to ensure that the full terms included in their signs were to be seen accordingly. The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. The signs must be visible at all times of the day; these requirements were not met and I demand strict proof that those signs are visible.

    Furthermore, the landmark case of Beavis establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges. Gemini Parking Solutions has not provided evidence that such signs, if present, were available throughout the car park and visible, from the area where the car was parked at the time of the event.


    I therefore respectfully request that POPLA uphold my appeal and cancel this PCN.

    Yours faithfully
    • crossone
    • By crossone 15th Dec 17, 4:24 PM
    • 26 Posts
    • 17 Thanks
    crossone
    please ignore the exclamation marks which do not appear in the text when not cut and pasted here for some reason.

    Drivers are not put on notice that ANPR cameras are used - this does't appear to be a point of appeal though?
    • Coupon-mad
    • By Coupon-mad 15th Dec 17, 4:34 PM
    • 53,987 Posts
    • 67,656 Thanks
    Coupon-mad
    Do POPLA usually/always follow previous decisions? My NTK included wording which POPLA have previously held to be inadequate ("within 28 days"). I intend to quote the previous POPLA decision in my appeal.
    Yes if it says 'within 28 days' you should win on that basis.
    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.

    • Jess158
    • By Jess158 15th Dec 17, 5:53 PM
    • 21 Posts
    • 6 Thanks
    Jess158
    Thank you Crossone for this amazingly helpful post, I have received a parking ticket for gambado car park today also!!! For exactly the same reason.

    If you need a picture of the signs still I am happy to go and get one tomorrow, I live round the corner - I probably need one for myself anyway!
    • crossone
    • By crossone 15th Dec 17, 6:37 PM
    • 26 Posts
    • 17 Thanks
    crossone
    Glad it is helpful - hopefully I'll get my POPLA outcome before you need to submit yours so you can use any feedback.

    Yes, yes please to some photos! Any guidance from others as to how to take them in the most helpful way very much appreciated. I don't recall seeing any sign at the entrance, although my appeal rejection letter says it is there ....
    • Jess158
    • By Jess158 15th Dec 17, 8:10 PM
    • 21 Posts
    • 6 Thanks
    Jess158
    I will pop by tomorrow and get them for you, hopefully someone can advise on best way to take them in the mean time. Will get pics of the entrance too.
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