POPLA Appeal - Gemini Response

sethcapes

Hi,

I am currently contesting a parking charge from Gemini in a leisure centre car park. I appealed to POPLA hoping that was the end of it. Not sure I had all the right arguments in order to be honest (my fault) so Gemini have come back with a response. I am now invited to comment on their response.

POPLA Letter
POPLA Ref
GEMINI Parking PCN no

A notice to keeper was issued on 14th August 2017 and received by me, the registered keeper of vehicle reg on 3rd July 2017 for an alleged contravention of ‘No ticket’’ at the Waltham Forest Feel Good Centre. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.


1) Amount demanded is a penalty
2) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
3) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
4) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
5) Misleading and unclear signage
6) No landowner contract nor legal standing to form contracts or charge drivers
7) Photo evidence appears doctored
8) No Grace Period Given (Clause #13 BPA Code of Practice)



1) Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

2) If GEMINI want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and GEMINI have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that GEMINI have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA. Furthermore, the notice to keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on 3rd July 2017, and the notice to keeper was received 42 days later on 14th August. This is a lease car and indeed the notice to the lease company arrived on the 4th August (32 days after the alleged breach). Clearly this does not comply with POFA.

The BPA code of practice also says '20.14 when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.

3) Leisure centre land is not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Council that this land is not already covered by bylaws.
POPLA assessor Steve Macallan found in 6062356150 in September 2016, that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012.
‘As the site is not located on ‘relevant land’, the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal.’

4) 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. 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 because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, 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. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 5 above.

5) The alleged contravention, according to GEMINI states that the ‘parking regulations are displayed on clearly visible signs at the entrance and throughout the location’. It would however appear that signage at this location do not comply with road traffic regulations or their permitted variations and as such are misleading - they are unable to be seen by a driver and certainly could not be read without stopping, and therefore do not comply with the BPA code of practice. GEMINI are required to show evidence to the contrary. I attach GEMINI’s own photos that clearly show that the signage does not comply with regulations.

I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: "It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it."

6) I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give GEMINI Parking Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, GEMINI Parking Ltd’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require GEMINI Parking Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that GEMINI Parking Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the landowner/occupier that entitles GEMINI Parking Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to GEMINI Parking Ltd to prove otherwise so I require that GEMINI Parking Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between GEMINI Parking Ltd and the owner/occupier, containing nothing that GEMINI Parking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

7) I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a thick orange text on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add this text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge GEMINI to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge GEMINI that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

8) As per section 13 of the BPA Code of Practice: 'You should allow the driver a reasonable 'grace period' in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.' Therefore, if a driver stops for a short period of time to read a sign, they must have the opportunity to leave and not accept the terms of an alleged 'contract'. 90 seconds, I would argue does not breach a fair 'grace period', and therefore GEMINI are in breach of the BPA Code of Practice.

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


GEMINI Response to POPLA
A Parking Charge Notice (PCN) was issued to vehicle registration on the 03/07/2017 at the location Waltham Forest Leisure Centre, 170 Chingford Road, Walthamstow, London E17 5AA for the contravention “No Ticket”.

There are a number of clearly displayed signs at the entrance and throughout the location advising on the site regulations and parking restrictions in place. It stipulates within the signage that the car park is Pay & Display and all vehicles must have a valid ticket displayed clearly within the windscreen.

With regards to appellant`s comments that the parking charge is a penalty, I refer to the judgment of the Court of Appeal in ParkingEye Limited v Beavis:

Key points:
1 The parking charge (£85, reduced to £50 if paid within 14 days) was considered to be a deterrent to overstaying, but the intention to deter was not sufficient to invalid the term of the contract with the driver (or licence – there is some discussion in the judgment that it might be a licence or a contract). In order to invalidate the contract (or licence) the parking charge would have to be extravagant and unconscionable and the charge made in this case was considered to be fine. The Judges did not say what amount of parking charge would be extravagant and unconscionable (and therefore not enforceable);
2 The parking charge made in this case was not a penalty, and the issue of genuine pre-estimate of loss is not relevant;
3 There is no need to graduate the amount of a parking charge after an initial free period of parking has expired;
4 Local authorities make similar parking charges and there is no reason why the private parking industry can’t;
5 A parking charge is an acceptable way to encourage turnover in car parks and to prevent motorists from leaving their cars for extended periods of time;
6 Parliament has supported (via the Protection of Freedoms Act) that such parking charges could be made so long as they are brought to the attention of the motorists at the time of use of a car park; and
7 The Court has granted permission to appeal to the Supreme Court, but Mr Beavis may not wish to do so given that the judgment is so strongly in favour of the parking industry.

Should you wish to read the full script, you can do so using the following link:
http://www.britishparking.co.uk/News/british-parking-association-says-government-could-go-further-by-regulating-parking-on-private-land?_cldee=aW5mb0BnZW1pbmlwYXJraW5nc29sdXRpb25zLmNvbQ%3d%3d
In regards to appellant`s comments in point 2, please, see photographic evidence. The parking charge notice was issued and attached on to the windscreen of the vehicle on the date of contravention and therefore I am unable to consider appellant`s claim that the notice was not delivered to the driver. The appellant claims that he is the registered keeper which is not true as the vehicle is hire vehicle and the appellant is a hirer, not the registered keeper.

































The appellant claims that the Notice does not comply with POFA however; I can confirm that the PCN was issued on 03.07.2017. The Notice to Keeper was then issued on 04.08.2017 to which the hire company responded with a transfer of liability and Notice to Hirer was issued on 15.08.2017. I am satisfied that these documents were issued within the time frame and comply with Pofa. The reasonable cause is also included in Notice to Keeper - pursuing an outstanding parking charge.
In regards to appellant`s comments that the location is not a relevant land, unfortunately, I cannot consider appellant`s claim. Please, see a signed client agreement which confirms who the client and relevant land is.
In regards to appellant`s comments, please note that the appellant was invited to supply the driver details and at no point was advised that at this time he is liable for the charge. We can only keep the keeper liable if after 28 days from the date of the Notice we have not received full payment or driver detail. It is up to the appellant whether he wishes to provide the driver details or not.
In regards to appellant`s comments on the signage, please, see the photographic evidence and site images. I am satisfied that there are a number of clearly displayed signs at the entrance and throughout the car park advising on the terms and conditions of parking. I am satisfied that the signage complies with BPA requirement. It is the motorist`s responsibility to be aware and comply with the site regulations at all times.
In regards to appellant`s comments on the photographic evidence, I can confirm that these images are not digitally altered. The date and time stamp is genuine and shows the above vehicle parked at the location in contravention to the site terms and conditions.
The BPA Code of Practice sets out the requirement for operators to provide a grace period, in which it will not issue a PCN for a breach of any terms of parking which, by their nature, require a grace period in order to be complied with. There is no requirement that the operator give a general grace period in which any breach of the terms of parking is overlooked simply because it does not occur for very long. As you can see on the photographic evidence, on the date of contravention, the vehicle was parked right next to a payment machine. No sign of a driver anywhere. By leaving the vehicle parked in the car park, the driver accepted the terms and conditions of the contract.
The above location is private property and is managed by Gemini Parking Solutions London Ltd on behalf of the land owner. Motorist has parked within restricted area which is owned by our client. When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is therefore the motorist’s responsibility to ensure that he or she abides by the conditions of parking at all times.

As displayed within the signage by staying at the location, the motorist accepted all of the prevailing terms and conditions of the parking contract including the charges for the breach of that contract. These signs offer the parking contract to the motorist and sets out the terms and conditions of the parking and upon which by remaining at the location, the motorist has agreed to be bound by these terms and conditions clearly show the amount which will become payable if the terms and conditions are breached.
Gemini Parking Solutions fully complies with the guidelines set by that of the British Parking Association who are the regulating body for the parking industry.


I am thinking that my best action is to challenge the signeage as it's clearly unreadable from the parking spot. Any tips appreciated.

Thanks

KeithP

URGENT - edit your post to remove PCN number, POPLA ref and Car reg no.

sethcapes

Done, thanks

Guys_Dad

"3) Leisure centre land is not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. "

Where did you get that from?

Coupon-mad

I would remove this and remove #3 as well, about non-relevant land (as Guys Dad pointed out):

1) Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.