Parking in No Parking area / London Aquatic Centre

Nicto

Hello – first time used the service, thanks in advance for your help. Please advise if in wrong thread.

I went swimming with my family at the London Aquatic Centre today. We parked the car, went for a swim and paid the parking fee (£1.50) inside the reception hall (the car park uses automatic number plate recognition) afterwards. Used the pool parking before, no hassle whatsoever.

On return we found a parking ticket from Gemini Parking Solutions for “Parking in No Parking area”. It states we have to pay £100 within 28 days, reduced to £60 if paid within 14 days.

Our car was parked next to another vehicle, one of about 20 vehicles parked side by side on (the car park consists of two long rows of cars opposite each other). The others were parked between parallel white lines: our car, at the end of the row, only had a white line on the lefthand side of the vehicle (I took photos, including the vacant space, but can't upload them).

There is a sign outside the car park boundaries - to get to it you have to climb over a plastic barrier, cross the pavement and go up to a lamppost - which states that “vehicles are not permitted to park within this area. Parking on yellow lines or hatched markings is not permitted.”

There are no markings on the ground where we parked such as hatching, lines etc - none whatsoever. Another car opposite our one, at the end of the other row of cars, had also been slapped with a ticket.

I intend to appeal and would appreciate if you could give tips on what grounds I should give, esp legal precedent, specific language etc.

thanks for your help!

Coupon-mad

Easy - read the NEWBIES FAQS thread (sticky thread, 'stuck' like a notice near the top of this board, in capitals) and use the blue writing template appeal. If you add a line or two about the area having the appearance of a bay and no other markings, DO NOT accidentally say who was driving!

And send it online if allowed (see the PCN re 'appeals' on the back) - as the registered keeper only - and on day 25 (NOT NOW).

They will reject it and will give you a POPLA code for 2nd stage independent appeal. You then search the forum for 'Gemini POPLA' or 'out of bay POPLA' for recent examples from 2016 only, to plagiarise a long and strong POPLA appeal from. Show us that draft and we'll assist (next month) to perfect it.

Nicto

Thanks so much for your advice, I do appreciate it (sorry not to reply earlier). I will take a look at this and get started as indicated.

Nicto

Thanks again for your help. I’m preparing the blue template as advised although will not send for a while. One thing – the blue template letter has the following sentence if I read it correctly…

“I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis.”

However, late last year Barry Beavis lost his case against Parking Eye as you mention further down in the Small Claims section of the Newbies thread.

Does that defeat invalidate your earlier comments above? Just wary of citing legal precedent if that case failed. Apologies if you have covered this elsewhere.

best regards and thanks again.

Coupon-mad

No, good question though; we like newbies who put some thought into it.

The point is, although Mr Beavis lost at the Supreme court, the signs shown here:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

...set a benchmark for clear signs that appellants and defendants with much more wordy, crowded, small print, sporadic or illegible signs, can use to their advantage as a comparison. The Beavis case helps other cases in several ways and that's why it's in the blue writing appeal.

Nicto

Aha, I get it! Thanks very much for your help.

Nicto

Hi folks

Thanks for your help again.

An email was sent as advised to the company after receipt of a PCN on September 11 (it was 25-26 days later).

I have a POPLA number and plan to appeal. Before I do, could someone please be good enough to take a look at these notes? I have taken the language of the response from the parking company and then put a response.

Background point: There has been no communication from the company since the ticket was issued, eg no letter via post (is that an NTK?). Does that lack of communication need to be mentioned?

cheers







BASIS OF APPEAL

COMPANY COMMENT
“We have noted your comments regarding insufficient and unclear signage however; we can confirm that there is a clear signage at the entrance and throughout the location advising on the site regulations which include that all vehicles must be parked within marked bays only.”


KEEPER RESPONSE
The closest signage was outside the car park, beyond the plastic barriers and next to a footpath (see photo, attached)

There is no mention on the signage that “all vehicles must be parked within marked bays only.” The word “bay” does not feature on the signage (see photo, attached)


COMPANY COMMENT
“On the date of contravention, your vehicle was parked outside of a marked bay and we are therefore satisfied that the PCN was issued correctly.”

KEEPER RESPONSE
There is no mention on the signage that the car must be parked in a marked bay


COMPANY COMMENT
“Unfortunately, we are unable to take the mitigating circumstances into account.”

KEEPER RESPONSE
No mitigating circumstances are being offered in this instance. This is a clear cut case of a ticket being falsely issued due to inadequate and confusing signage.


COMPANY COMMENT
“It is the motorist`s responsibility to be aware and comply with the site regulations at all times.”

KEEPER RESPONSE
A parking ticket was paid for, as has happened on previous occasions when the facility has been used and a vehicle has been parked.

The site regulations are unclear. At the same time as this ticket was issued, another car directly opposite a silver Audi was also issued with a ticket, registration xxxxx (the vehicle can be seen in photo 2 provided by the parking company in the top right: it does not appear to have been ticketed when the photo was taken, the company should have a record of it). There is clear grounds for confusion.


COMPANY COMMENT
“Please, see the photographic evidence below. The barriers clearly indicate which area is a No Parking Area and the signage clearly states the terms and conditions of parking.”

KEEPER RESPONSE
There is no signage on the yellow plastic fencing barriers whatsoever advising this is a No Parking Area: nor any yellow hatching on the road surface to intend that no vehicle can be parked here. The signage states that “parking on yellow lines of hatched markings is not permitted” – but there are none in this area. What indications are there that a vehicle cannot be parked here?

The vehicle was not parked in front of a barrier: please refer to the parking company’s first photograph as evidence of this: the end of the barriers can be clearly seen.

There is no barrier in front of the space where the car was parked, much as there is no barrier in front of all the other cars on this stretch, which are adjacent and parked parallel to the parked car in question
Therefore, if the company is saying that “barriers clearly indicate which area is a No Parking Area” then the criteria for this ticket fails to meet this test: the car is not parked in front of the barriers

The closest sign installed is outside the car park itself and beyond the adjacent footpath. It is an unremarkable sign and its placement does not assist the driver in any way.

!I believe that your signs fail the test of “large lettering” and prominence, as has been established in ParkingEye Ltd v Beavis. The signs are in very small print and the terms are not readable to drivers before they park.


COMPANY COMMENT
“The above location is a private property and is managed by xxxxxxxx on behalf of the land owner. 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 the motorist’s responsibility to ensure that he or she abides by any clearly displayed conditions of parking.”

KEEPER RESPONSE
The company does not own the car park. The company did not supply information about its policy with the landowner to cancel such a charge as requested previously on date xxxx as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.!That information has yet to be issued, as well as a geographical address of the landowner.


COMPANY COMMENT
“You were parked outside of the set terms and conditions of the site and as a result we have rejected your appeal as your representations did not make sufficient grounds.”

KEEPER RESPONSE
In conclusion…

The company failed to offer adequate signage and guidance in this part of the car park as to what was permissible and what was not, causing confusion for drivers

The company has failed to follow requests, including details of the landowner, or to issue an NTK

A charge was paid for parking at the time, as has been paid on other occasions when a vehicle has been parked at this location and as requested within the regulations

Please note: There will be no admission as to who was driving. Please be advised that no such assumptions can be drawn.


[ ends ]

Ralph-y

the points will need to be worked into a full POPLA appeal ..... try looking through the POPLA decisions thread (working backwards from the most recent)

have you complained to theLondon Aquatic Centre yet ?

this should be done in tandem with the appeal ...

good luck

Ralph:cool:

Nicto

Hi folks

Thanks again for all your help. I need to get my submission to POPLA in the next 48 hours (I have a number etc) as the ticket was issued on September 11. Would someone be good enough to give the submission below a quick eye for any howlers?

best regards

Nicto


I am writing to lodge a formal appeal against a parking charge notice (PCN) found on the vehicle xxxxxxx on xxxxxxxxxx at xxxxx.

I am the registered keeper of this vehicle and am not liable for the PCN issued by Gemini Parking Solutions.

Grounds for appeal

1.No Notice To Keeper (NTK) has been issued
2.Gemini has not shown that the individual who it is pursuing was in fact the driver of the vehicle at that time
3.The signage and road markings in the car park were inadequate.
4.Gemini has failed to provide information to the appellant that it has a contract to form contracts with drivers on this land or to pursue charges
5.The required charge for staying in the car park was paid


>>> 1. No Notice To Keeper (NTK) has been issued <<<

Gemini’s PCN fails to comply with the Protection of Freedoms Act 2012 (POFA)

Under schedule 4, paragraph 4 of the Protection of Freedoms Act 2012, for the creditor (Gemini) to have the right to recover any unpaid parking charges from the keeper of the vehicle (myself), certain conditions must be met. These are stated in schedule 4, paragraphs 5, 6, 11, and 12. Gemini has failed to fulfil the conditions of paragraph 6; which states that it must have provided myself as the registered keeper with a notice in accordance with paragraph 9. Paragraph 9 states:

The notice must be given by

(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

The burden of proof lies with the operator to demonstrate that it has issued the PCN correctly. No such NTK has been received since the ticket was issued on September 11.


>>> 2. Gemini has not shown that the individual who it is pursuing was in fact the driver of the vehicle at that time <<<

POPLA must consider whether it is confident that it knows who the driver of the vehicle was, 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) so long as the driver is insured. There is no dispute that the driver was entitled to drive the car. 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 identifiable 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. The fact remains that I am only appealing as the keeper of the vehicle 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 Gemini 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 has failed to do this.

The issue of full compliance with the POFA was confirmed by Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

“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.


>>> 3. The signage and road markings in the car park were inadequate. <<<

The signs around the car park are detailing the terms and conditions of parking contain letters in small writing that are above head height for the average person (this would be around 1.7 metres according to latest research for adults).

The closest sign facing the vehicle was actually positioned beyond the boundaries of the car park: to read it any driver would need to exit their car and cross a footpath (see enclosed photo “XXXXX”): it is not possible to read it from a vehicle before making a decision as the wording is too small and it is too far away.

This lack of signage runs counter to section 18 of the BPA Code of Practice which states:

18.3 !Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

Gemini has contended when the keeper appealed against the PCN that it was issued for “Parking in No parking area”. It argued that that the ticket was issued because:

- The vehicle was parked outside a bay

- The vehicle was parked alongside barriers which indicate that this area of the car park was a no parking area

- Signage stated that “parking on yellow lines or hatched markings is not permitted”

The appellant contends that:

- The signage makes no mention whatsoever of parking in a “bay” (see photo xxxxx)
there is no signage on the yellow plastic fencing barriers advising that this is a no parking area (see photo xxxxx)

- There is no actual barrier directly in front of where the car is parked (see photo xxxxx, taken by Gemini, as evidence of this). Furthermore there is no signage attached to this barrier

- There are no yellow hatchings on the road surface to indicate that no vehicle can be parked here (see photo xxxxx)

This is counter to the BPA Code of Practice 18.5 which states that:

“The wording you include on your specific parking terms signage is your decision. However, you should try to use plain and intelligible language in all your signs and information.”

The signage makes no mention of bays but instead alludes to “yellow lines” and “hatched markings” of which there are none. It assumes the driver understands what coloured barriers without signage indicate that this is a no parking area. The signage information provided by Gemini fails the test of being “plain and intelligible”

Furthermore, the vehicle was parked parallel to another vehicle as if it was in a bay (see photo xxxx). It was parked in such a way that it was impossible for it hinder the egress or ingress of any other vehicle in the car park.


>>> 4. Gemini has failed to produce evidence that it has the authority to form contracts with drivers on this land or to pursue charges. <<<

I do not believe that Gemini has any proprietary interest in the land such that it has no standing to make contracts with drivers in its own right, or to pursue charges for breach in its own name. Its signage fails to name the landowner or any contact details for the landowner. It represents itself to drivers as if it owns the car park when in fact I believe that it does not.

Gemini must have rights from the landowner to pursue charges for breach in their own right, including at court level.

I contend that Gemini merely holds a basic commercial licence to supply and maintain (confusing) signage and to post out 'tickets' as a deterrent to car park users.

I have asked Gemini to provide me with a copy of the contract that it holds with the landowner to entitle it to do this. This is so that I am satisfied that this contract permits Gemini to make contracts with drivers in its own right and provides it with full authority to pursue charges, including a right to pursue them in court in its own name.

It has failed to produce any such document in the time period since the PCN was issued on September 11, despite my request under under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

I would expect such a document to cover at least the following, per paragraph 7 of the BPA Code of Practice:

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 GPS would not be fully stated.

>>> 5. The required charge for staying in the car park was paid. <<<
The keeper contends that use was made of facilities adjacent to the car park and for which the car park was provided. At the end of the use of those facilities, the correct charge was paid and a receipt issued (see photo xxxx)

On the basis of the reasons above, I respectfully ask that the appeal against this PCN issued by Gemini Parking Solutions be upheld.

[ ends ]

Coupon-mad

Looks good to go! Hopefully these POPLA templates are making it easier for people, particularly in cases like yours with no NTK, points #1 plus #2 are surely fatal for Gemini.

I also recommend that you embed all photos within the word document to literally illustrate your appeal, make it 'look pretty' (dare I say, make the appeal look appealing?!) and break up the wall of words, so the Assessor can see what you are talking about with the signs and ticket receipt, without having to switch between various evidence uploads. I prefer the single document approach and it works for me.

I would then save it as a PDF and submit it as a single document under 'OTHER' on the POPLA website, making sure it uploads as a little 'bin' icon before you go to the final page and submit it.

The_Deep

the signs shown here:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking+sign_001.jpg

...set a benchmark for clear signs that ...


But even that sign is ambiguous as to where Blue Badge holders may or may not park.