Gemini Parking Solutions

Redx

as mentioned before , delete 6) completely , cannot work since Beavis lost his case 8 months ago in the Supreme Court

change 6) to show why the Beavis case does not apply in this case (different scenario)

in other words , make sure they dont apply the Beavis test and dismiss your appeal

and 4) mentions BCP ??? surely you mean BPA ??

paul1971paul

Hello
Where can i find why the beavis case would not apply, i have searched many post and cant find anything to this effect?
I have seen one post suggesting it would not apply to "hospitals" anyhow so should any reference to this not required anyhow?
Thank you
WIlliam

Redx

all rebuttals are required.

the point being that unless you query any and all references , gemini will reference something and popla wont see that you have queried it

the beavis case was an overstay on a 2 hours free car park, yours is nothing like it as you say

Gemini will reference the Beavis case, which popla will swallow hook , line and sinker unless you put an anti-beavis appeal point in showing that Beavis is not relevant

ie:- its your job to anticipate what will come up and ensure you have prepared the ground work for it, because neither Gemini nor popla are "on your side"

so find and use an anti-beavis (beavis does not apply because) appeal point in your appeal and anticipate and put in any other appeal points , prevention being better than cure (hospital pun)

I will point you at what you need but its tiresome to keep explaining these basics to members , your reply should have been , yes , ok redx , I will delete that point you mention, I will find the alternative you mention and add it instead

we wont find it for you , we will give you the advice you need , which is go and find it and add it, I dont care if it takes you a week to find it , its your job to find out what you are pointed at, once you know what to look for

so find a recent popla appeal that mentions not being the same as beavis (beavis does not apply) because its not a free car park with a maximum stay etc

The_Deep

Here you go


https://www.supremecourt.uk/cases/uksc-2015-0116.html


Read it thoroughly, there will be a test later.

paul1971paul

Hello All
Sorry if iam not doing this correct and if iam losing people patience !
OK i have been looking and think i have found something to show the Beavis case does not apply and also a new point 7 which from reading the other messages the more points the better!
Hope this is getting more solid now.

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

1) The operator/landowner has not complied with provisions of the Equality Act 2010
2) Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012
3) No standing or authority to pursue charges nor form contracts with drivers.
4) Unclear and non-compliant signage, forming no contract with drivers.
5) Unreasonable and unfair terms – no contract agreed to pay £60.00. Fails the ‘Aziz test’.
6) No legitimate interest in enforcing a charge – (Parking Eye vs Beavis Case not relevant)
7) No authority to issue tickets


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

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 indirect discrimination and discrimination due to disability.

In the BPA CoP it states that; 16.1 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.
16.2 ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine. In fact Gemini has clearly decided to do the opposite of this and has not made any adjustments and has actually put in place further barriers for the disabled person compared to the able bodied person.

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

Furthermore , Gemini has no regard for Department of Health guidelines for parking on NHS sites and this cannot be deemed acceptable. gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

This is a crucial point in which this appeal will be directed to PALS who are responsible for patients experiences in the hospital, reference will be made to BPA CoP and the DOH guidelines. As the disabled person in the vehicle attended the hospital appointment on that day and this clearly is a barrier.

2) Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012

As the parking company have neither identified the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and a parking company can only potentially pursue the (unidentified) driver.

The following points may be observed as failures in this Notice to Keeper, making this non-compliant under the POFA 2012, Schedule 4 paragraph 9:

a. A notice to keeper has never been sent. No transfer of liability from driver to keeper as no NTK issued.

A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a Notice to Keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out or send the mandatory Notice to Keeper renders it non-compliant.

3) 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

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.


4) Unclear and non-compliant signage, forming no contract with drivers.

The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.

The BPA Code of Practice states under appendix B, entrance signage:

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.

When with reference to the BPA Code of Practice, it actually states:

"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision".
There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering.
The requirement to pay £60.00 is not clear on any of the signs that are directed to the disabled driver and are not prominent. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.

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.

5) Unreasonable and unfair terms – no contract agreed to pay £60.00. Fails the ‘Aziz test’.

I also wish to reference the Aziz test in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

And as for whether average consumers 'would have agreed' to pay £60.00 had there been negotiations in advance, the answer here is obviously no. One could have parked free on road at this time of the day in the surrounding residential area (residential side roads with no restrictions at all surround Stepping Hill Hospital). One could have also parked in other disabled bays in the hospital grounds, where such daunting, exhausting and discriminatory steps do not exist for the disabled driver. There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £60.00 to this parking firm especially since they discriminate against the disabled person, no clear contracts especially for the disabled person, and as such this unjustified and discriminatory charge should not be upheld.

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. Gemini fail on a number of occasions and as such I would respectfully request that this appeal is upheld.

6) No legitimate interest in enforcing a charge – (Parking Eye vs Beavis Case not relevant)

The Operator has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term. This case can easily be distinguished from ParkingEye v Beavis. With regards to the location of the car park and the interests of the operator, there is no comparison with the Beavis decision with this being a residential car park.

The Operator may seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that ParkingEye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;-
b. The desirability of that parking being free so as to attract customers;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants business, for example by commuters going to work or shoppers going to o -park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons.
In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, the Operator has made no loss and the charge is a penalty.

The Operator has no legitimate interest in enforcing this charge; their only interest is to seek to profit. Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation it is impossible, without intellectual dishonesty, to believe that they would determine that this alleged offence would justify such a disproportionate, extravagant and unconscionable charge. Careful analysis of the Supreme Court judgment is not, as the Operator may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not.

The sum of £60.00 is not communicated to drivers at all, let alone clearly and unambiguously, so it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver can't read the sum of the parking 'charge' (the £60.00 in this case) before parking - because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it.

The Beavis decision is not a silver bullet, not for any operator and not for Minster Baywatch. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule in that case only. It may be useful to refer to but it cannot be used to strike out the majority of private parking ticket appeals.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed the following in writing, as the official POPLA policy regarding the requirement for proper application of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.

Yours sincerely
R Reeve
POPLA Administrative Team”

The point here is, the new POPLA Service cannot and must not make any wrong assumptions about keeper liability nor impose the Beavis case arbitrarily upon all cases. There must be no misunderstanding by operators or POPLA that the Beavis case or 'GPEOL' automatically supersedes all other points of appeal about other parking charges in other car parks.

7) No authority to issue tickets

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, Minster Baywatch must have assignment of rights from the landowner to pursue charges for breach in their own name - which they do not.

In addition, Section 7.3 of the British Parking Association CoP states:

“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.''

I therefore put Minster Baywatch to provide strict proof to POPLA and myself with an unredacted, contemporaneous copy of the contract between the operator 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 which have been properly assigned to Minster Baywatch.

I refer you to the case at Winchester County Court of R.L Davey v UKPC where UKPC were obliged to pay Mr. Davey a total of £1,430.26 in costs and damages after persistently ticketing his vehicle on his private property (in a residential car park allocated to a flat such as this one) despite his warnings.

This case sets the precedent that Minster Baywatch and other Operators in a residential car park have no right whatsoever to decide the rules which are instituted for the benefit of the tenants and landowners over their own land, in this case the allocated parking space.

The Assured Shorthold Tenancy (enclosed) makes no mention of the requirement to display a permit. Therefore Minster Baywatch have no authority to issue a Parking Charge Notice as the AST supersedes any agreement they might have with a management agency.

Secondly, Minster Baywatch has no permission from the landowner to conduct and operate a business this premises, is not paying business rates to operate on this land, and are therefore illegally running a profit making business on this land.


Please note a complaint has also been recorded and made direct to Stepping Hill Hospital via PALS, ref FC23517, awaiting reply.



Yours faithfully,

Redx

looks ok to me except for the following that you did not proof read 6) or 7) that you copied and pasted from a MINSTER BAYWATCH thread

ie:- you failed to spot and amend the PPC several times , please edit it accordingly (but you have now edited the BPA error that I pointed out earlier in point 4)

you also failed to spot and amend the MINSTER BAYWATCH points which relate to an A.S.T. and therefore a leasehold property overseen by an M.A. , none of which is relevant to a hospital like Stepping Hill as it is not a residential car park !!!

so at least half of 7 has no relevance and a different PPC is named throughout
dont just copy and paste, read what you have written and amend accordingly

after that , it seems ok to me but wait for other critique or amendments if you have time before the popla deadline

bod1467

Aside from the above, what's the difference between 3 and 7?

paul1971paul

Hello
I have made some amendments to point 7 removing as directed.
3 and 7 are similar but thought it would be good to reinforce the point - could merge 7 into 3?

7) No authority to issue tickets

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, Minster Baywatch must have assignment of rights from the landowner to pursue charges for breach in their own name - which they do not.

In addition, Section 7.3 of the British Parking Association CoP states:

“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.''


On 6) you mention i have failed to spot and amend the "PPC" - please can you explain what this is so i can do this.

Thank you
Regards
WiIliam

Redx

any references to MINSTER BAYWATCH where yours is GEMINI , or THE OPERATOR

you have still left MINSTER BAYWATCH in the amendment above - doh !!

in 6) , I would have changed THE OPERATOR to GEMINI at the first mention, leaving the rest alone (but if it said MINSTER BAYWATCH then you would amend it)

in simple terms

REMOVE ANYTHING THAT SAYS MINSTER BAYWATCH as yours is GEMINI

I also agree with BOD that 3) and 7) are the same , so merge if you have to , after making the amendments

I assume you know what an A.S.T. and M.A. and a residential car park are ?

if not , google them (after checking if any acronyms used appear in the NEWBIES sticky thread)

paul1971paul

thank you redx - iam doing my upmost to make sure i make no errors but being disabled and the old eyes not being as they used to be iam finding it hard but will get it right !
regards
william