GEMINI Parking Solutions

Coupon-mad

You could add it, won't do any harm when talking about the disabled driver in the third person. But I doubt it will make any difference, hence why a template is offered.

luke123456

This is my first stage appeal for the second invoice;

Dear Sirs

Re: PCN No.
VRM:

I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.

I believe that the system you have put in place for disabled drivers is discriminatory and is against the Equality Act 2010. Also, I believe that those parking in a 'normal' bay would not have to go at such lengths to park. There is no doubt that your system is discriminatory and in doing so makes this invoice void.

I believe that the signs were not seen/are ambiguous and the terms unclear to drivers before they park. Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as I believe the driver may well be eligible for cancellation.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,

Coupon-mad

That'll do for this stage.

luke123456

Hi this is my draft POPLA appeal, I would be grateful for your advice. many thanks!!!!

Re: Gemini PCN, reference code
POPLA Code:


I am the registered keeper and I wish to appeal a recent parking charge from Gemini. I submit the points below to show that I am not liable for the parking charge:

1) The Notice to Keeper does not comply with provisions of the Equality Act 2010
2) No genuine pre-estimate of loss
3) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
4) No standing or authority to pursue charges nor form contracts with drivers.
5) The signage was not readable so there was no valid contract formed.
6) The ANPR system is unreliable and neither synchronised nor accurate - evidence does not discount two visits shown as one.

1) The Notice to Keeper does not comply with provisions of the Equality Act 2010

The operator does not comply with the provisions of the Equality Act 2010. In fact under the Equality Act Chapter 2, the operator would be considered to be showing direct discrimination and discrimination due to disability. The Operator has put in place measures which prove more difficult for a disabled person to park rather than an able-bodied person with no disability. The signage and instructions are difficult for a disabled person to read, to access and the ‘touch screen console’ that requires the disabled person to input their VRM and disabled badge number is located far from the point of parking. As such the disabled person will struggle to read the signage, understand and retain the instructions necessary to park and then to locate a machine located further than the pay and display machine and then input the required details from their disabled badge then return to the car to put the badge back on display and then leave the car park. This seems to be an excessive, unnecessary and troublesome process for the disabled person.

2) No genuine pre-estimate of loss

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

http://www.farrarsbuilding.co.uk/cms/uploads/A-Retailer-v-B-K_001.pdf

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.

This charge cannot be 'commercially justified' either, so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.
POPLA Assessor Chris Adamson has stated in June 2014 that:

''the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

3) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability

As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was 'either/or' an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.

4) No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Gemini must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Gemini to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Gemini and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Gemini.

5) The signage was not readable and misleading so there was no valid contract formed between Gemini and the driver

The only sign which clearly states how the disabled person must park is located beside the pay and display machine (in an outdoor booth) which is located far away from the disabled parking bay (see attached pictures).

The only sign located beside the disabled parking bay is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. I believe that Gemini place the exact instructions on how a disabled person can park far away from the disabled bay. As seen in the images attached the sign beside the disabled bay is placed very highly and the intercom button also very highly. Therefore, how can one expect the disabled person in a wheelchair to teach this button and to stretch their arms highly. The sign above the intercom button is very misleading in that the instructions on the sign are printed in very small print and the disabled logo is large. The instructions are different from the instructions on the other sign which is located outside of the parking building. This is not only difficult, inaccessible but misleading.

Any photos supplied by Gemini to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the Gemini signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require Gemini to state the height of each sign and distance from disabled bay in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

6) The ANPR system is unreliable and neither synchronised nor accurate, and there is no evidence that this was just one visit

Gemini's evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access afterparking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event.

As keeper I cannot discount that this may have been a double visit (possibly even with two drivers since the car has more than one family member who drives it). Or the driver may have driven in, realised it was pay and display then driven out to get change before returning (and of course the ANPR cameras show only the first and last visits). The BPA even mention this as an inherent problem with ANPR on their website;
http://www.britishparking.co.uk/How-does-ANPR-work
The BPA's view is: 'As with all new technology, there are issues associated with its use:
a) Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Even if an Operator shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All camera records could be checked and this Operator would still be unable to refute the 'double visit' possibility, since they don't bother to record continuous footage, this not being CCTV. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.

Further, this Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored and used. I say that Gemini have failed to clearly inform drivers about the cameras and how the data will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance. Indeed, I question the entire reliability of the system. I require that Gemini present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.

This concludes my POPLA appeal.

Yours faithfully,

Coupon-mad

First point heading isn't anything to do with the NTK, so change:

The Notice to Keeper does not comply with provisions of the Equality Act 2010

to:

The operator/landowner has not complied with provisions of the Equality Act 2010

and where that paragraph ends, add to this final sentence (below*) a couple more lines to show POPLA that this breaches the BPA Code of Practice (find and quote the BPA CoP point which says what operators must do for disabled drivers, I'm sure there is something about maachines and signs being accessible...):

*This seems to be an excessive, unnecessary and troublesome process for the disabled person.



The rest of the POPLA appeal draft is based upon a really old and out of date one!

I would go back to the drawing board, look at a P&D car park example linked in post #3 of the NEWBIES thread. One written since November! Use a newer one as your base, they don't look like that one now, not sure where you found it but it's too irrelevant in many ways.

luke123456

Thanks for your help C-M, Please advise about the below revised statement;


Dear POPLA

I am the registered keeper and I wish to appeal a recent parking charge from Gemini. I submit the points below to show that I am not liable for the parking charge:

1) The Notice to Keeper does not comply with provisions of the Equality Act 201
2) Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage.
3) No genuine pre-estimate of loss
4) No standing or authority to pursue charges nor form contracts with drivers
5) No contract between driver and Premier Park


1) The Notice to Keeper does not comply with provisions of the Equality Act 2010 Or the


The operator/landowner has not complied with provisions of the Equality Act 2010 In fact under the Equality Act Chapter 2, the operator would be considered to be showing direct discrimination and discrimination due to disability. The Operator has put in place measures which prove more difficult for a disabled person to park rather than an able-bodied person with no disability. The signage and instructions are difficult for a disabled person to read, to access and the ‘touch screen console’ that requires the disabled person to input their VRM and disabled badge number is located far from the point of parking. As such the disabled person will struggle to read the signage, understand and retain the instructions necessary to park and then to locate a machine located further than the pay and display machine and then input the required details from their disabled badge then return to the car to put the badge back on display and then leave the car park. This seems to be an excessive, unnecessary and troublesome process for the disabled person.

The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people. The Act also says ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces and include lowered payment machines.

Gemini has not complied with any aspect of the Equality Act and certainly not complied with the BPA Approved Operator Scheme

Code of Practice

2) Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage
The 'sign’ beside the parking space does not communicate fully contractual terms & conditions. Any photos supplied by Gemini to POPLA will no doubt portray it with the signs in a clear picture without many pieces of information in the clutter of this Hospital car park. As such, I require Gemini to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo-shopping or cropping and showing where the signs are placed among a myriad of other information bombarding the disabled person without the help of external lighting such as a camera flash or torch.

Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

3) No genuine pre-estimate of loss
The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. Gemini must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Premier Park Ltd have no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

Gemini cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Gemini Ltd are likely to be paid by their client - so any such payment income must be balanced within the breakdown Gemini supply and must be shown in the contract, which leads me to appeal point 5 below.

4) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Gemin must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Gemini to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between Gemini and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Premier Park Ltd.

5) No contract between driver and Premier Park
As per the property lease signed and agreed to in 2007, there is no mention of Gemini, or any other parking company or third party to manage the car park in question. There is no mention of requiring to display a permit to park in the space provided with the property. As per appeal point 5 above, the vehicle was parked while observing the requirements of the property lease therefore there is no contract between the keeper and Gemini.


In any case, even if POPLA consider signage to be relevant in this instance, the driver was not adequately informed of the terms nor warned 'prominently in large letters' of the actual sum of the parking charge anywhere, which fails 2(3) of Schedule 4 outright.


This concludes my POPLA appeal.

Yours faithfully,

{Name of Keeper}

Umkomaas

I've skim read your latest draft POPLA appeal.

1. You need to check your heading #1 in the bullet point list and your main appeal as you seem to have ignored what Coupon-mad explained to you.

2. There is a freestanding 'Code of Practice' phrase - nothing connected to it, why is it there?

3. Your 'Signage' appeal section needs to be headed a bit more clearly - it's a bit jumbled with 'Unfair Terms' such that it doesn't stand out - it can be a winning point, so tidy that up a bit.

4. What relevance has Premier Park Ltd with your PCN?

5. You really must proof read your appeal carefully, because as it stands it is clear that it has been copied and pasted from random other appeals, and contains statements that have no connection with your circumstances.

A good bit more to do. This is not a simple 'copy and paste and it all goes away' exercise

Coupon-mad

As Umkomaas says, take out 'Premier Park' (you can't just copy verbatim from another one about another company; you have to change things to suit). You have lifted the bit below from a permit-holder residential car park example which makes no sense - I directed you to look for a P&D car park example so you can't use any of this irrelevant stuff about a 'lease' signed in 2007 and permits:

As per the property lease signed and agreed to in 2007, there is no mention of Gemini, or any other parking company or third party to manage the car park in question. There is no mention of requiring to display a permit to park in the space provided with the property. As per appeal point 5 above, the vehicle was parked while observing the requirements of the property lease therefore there is no contract between the keeper and Gemini.

And you haven't changed point #1 as advised. The NTK has nothing to do with the Equality Act so I have already explained how to change that heading #1.

And the rest is out of date as already stated, look at a P&D car park one!!

Coupon-mad wrote: »

The rest of the POPLA appeal draft is based upon a really old and out of date one!

I would go back to the drawing board, look at a P&D car park example linked in post #3 of the NEWBIES thread. One written since November! Use a newer one as your base, they don't look like that one now, not sure where you found it but it's too irrelevant in many ways.

luke123456

UPDATE:

As you are aware, there are 2 invoices here.

I have till midnight today to submit my POPLA appeal for the first one, and for the other I have 28 days from today.

For the second one which I have 28 days, Gemini replied this afternoon and this was their response; In particular in my appeal to Gemini I mentioned that they were discriminating against disabled drivers and made it particularly hard for disabled drivers to park....This was their response to my appeal to them and I hope I can get some URGENT HELP PLEASE to submit my POPLA appeal for the first invoice.
(Gemini sent letter of rejection to first invoice on 22 January so I take it today is the 28th and last day?)

Thanks so much would appreciate an urgent reply. I will post my intended final POPLA appeal to the first invoice shortly

luke123456