Gemini Parking Solutions - Help with appeal

pathris

Hello
I need help with formulating an appeal to POPLA.

I received PCN from Gemini Parking Solutions on 09/10/17. I followed the protocol and sent an appeal to POPLA after 28 days without receiving Notice to Keeper at this point. I have now received the response from Gemini and have 7 days to reply.

My appeal was based on the below:

1. Inadequate Signage. No signage currently displayed in the location or within sight where the car was parked at the time, please see pictures attached. Gemini has provided photos of the signage which is not within the sight of where the vehicle was parked (the signage shown at the photos are at the very back of the driver and he/she would not be looking at this direction in order to enter the premises and will be walking away from it), hence relying on a signage to form a contract which is located at around 25 meters away from where the car was parked. I, therefore, content that there is no evidence that the driver saw the sign at all and thus no contract can be formed.
2. No Notice to Keeper. Gemini has failed to serve a Notice to Keeper, which is fundamental document when the Operator does not know who the driver was.
3. Lack of legal standing: Gemini Parking Solutions is not the landowner and in this case, I should see a copy of the contract detailing the restrictions, charges, the date and the terms of business, definition of your status as agents or contractors and your assigned rights. Such details were necessary for me to make an informed decision. A site agreement or witness statement is “not a valid evidence” as per POPLA rules.

I now received a response from Gemini, please see below and wanted to your thoughts on how to proceed further.

A Parking Charge Notice (PCN) was issued to vehicle registration xxxxx on the 09/10/2017 at the location GLL Mile End Leisure Centre, 190 Burdett Road, Mile End, London, E3 4HL 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 or permit displayed clearly within the windscreen.

I have noted appellant`s comments regarding insufficient signage. However; please, see the site images and site map of the location. There are multiple signs at the entrance and throughout the location advising on the site regulations. The appellant claims that the only sign is located far away from the vehicle and the person entering the premises would miss it. However; as you can see on the site images, there are two payment machines at the entrance of the leisure centre, one on each side, together with a signage advising on terms and conditions of parking and parking tariffs. I am therefore unable to consider appellant`s claim regarding inadequate signage.

In regards to appellant`s comments about the Notice to Keeper, please note that this can only be issued after 28 days of the PCN issued date. The PCN was issued and attached onto the windscreen of the vehicle on 09.10.2017. As it was affixed on to the vehicle, I am unable to provide a copy of the PCN. I can confirm that we have not received registered keeper details from DVLA yet due to the appeal process as the PCN was on hold. Although the appellant stated that it was her vehicle parked at the location, she never confirmed whether she is a registered keeper or the driver and no evidence of her being the registered keeper had been provided. I can confirm that the driver remains liable and once the Notice to Keeper is issued, the registered keeper will be given the opportunity to supply driver details so that we can contact them.

In regards to No Landowner authority, please, see the client agreement which proves that Gemini is authorised by the landowner to manage the location on their behalf and issue PCNs to vehicles parked in breach of the terms and conditions of parking.

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


It has now been 41 days since I received the PCN and still no Notice to Keeper.
The contract Gemini sent to me seems to have been edited with some bits blacked out. Is this correct?

The photos with the signage are old, and I am going to check if the locations are as they say. I honestly did not see the sign on the entrance, as I was rushing and concentrated where I should park. I am also not sure if the measurement and font of the signs are compliant?
I am not able to attach a photo, but where my car was parked it was no clear signs nearby.

Your advice will be appreciated.
Pathris[IMG]file:///C:/Users/petyahristova/Downloads/Mile%20End%20Leisure%20Centre.pdf[/IMG]

Redx

you are no longer drafting an appeal to popla , that has already been done , and GEMINI have issued POPLA with their evidence pack

what you are now doing is called a rebuttal, where you rebut the items in their evidence pack that are incorrect, some or all of which you have identified above as being issues in their own evidence pack

the rebuttal cannot introduce new evidence and should be short concise comments rebutting their evidence pack

search the forum for any 2017 POPLA REBUTTALS to find similar examples and to form the basis of your own rebuttal which needs to be emailed (I think) to popla within that 7 day deadline

if they havent issued an NTK by their own admission , say so

if they have not successfully transferred liability from the driver to the keeper, say so

if their contract is redacted , not signed and dated , expired or whatever , say so

take apart their evidence pack piece by piece , highlighting the errors that they have admitted to, or failed to address

then post the REBUTTAL draft here for checking

pathris

Many thanks,

I will search the forum for Rebuttals.

Regards,
P

Coupon-mad

The contract Gemini sent to me seems to have been edited with some bits blacked out.

Point this out to POPLA, your comments should be bullet points. Short & sweet, not the appeal re-stated. POPLA hate that.

To see other recent examples, search for: POPLA comments bullet points

However, as your appeal said this:

2. No Notice to Keeper. Gemini has failed to serve a Notice to Keeper, which is fundamental document when the Operator does not know who the driver was.

and they said this rubbish and couldn't even cough up the PCN!:

In regards to appellant`s comments about the Notice to Keeper, please note that this can only be issued after 28 days of the PCN issued date. The PCN was issued and attached onto the windscreen of the vehicle on 09.10.2017. As it was affixed on to the vehicle, I am unable to provide a copy of the PCN. I can confirm that we have not received registered keeper details from DVLA yet due to the appeal process as the PCN was on hold. Although the appellant stated that it was her vehicle parked at the location, she never confirmed whether she is a registered keeper or the driver and no evidence of her being the registered keeper had been provided. I can confirm that the driver remains liable and once the Notice to Keeper is issued, the registered keeper will be given the opportunity to supply driver details so that we can contact them.

...then YOU WILL WIN. Steer the Assessor in the right direction with simple bullet points!

pathris

Thank you Coupon-mad.

Can I still use the argument about no NTK as in order to comply with the time frame for the rebuttal, only 44 days have passed since the issue of the PCN as opposed to the 56 days which everyone recommends?

Redx

sounds like you did not appeal around day 26 to the initial windscreen ticket , but much , much earlier

the idea was to drag it out for almost 28 days before initially appealing , then to submit the popla appeal around day 28 to day 30 following the popla code , to drag it out past the 56 days for an NTK to arrive

but its too late for recriminations , but yes point out the lack of the NTK by their own admissions , plus the lack of clarity on transferring liability from driver to keeper

work with what you have got , but in future dont be too hasty in appealing to a ppc or to popla

Coupon-mad

Yes you can still use that argument - Gemini don't get to see your final comments to POPLA, so it won't tip them off.

pathris

Hi there,

This briefly is my bullet points to POPLA. I will appreciate any comments and suggestions before I submit tomorrow morning.

Ref. POPLA appeal xxxxxxxxxx

Dear POPLA,

I write to you in response to the "evidence pack" Gemini Parking Solutions have submitted.
In making their assessment I ask the POPLA assessor to consider the following in further support of my original POPLA appeal as submitted on 12/11/2017
1. Gemini Parking Solutions’ Parking Charge Notice is not compliant with the Protection of Freedom Act 2012 (POFA) as no Notice to Keeper has been issued.
2. Gemini Parking Solutions has not shown that the individual who is pursuing is, in fact, the individual who is liable for the charge.
3. The copy of the contract is redacted and blacked out at some places, thus hiding information that could be relevant fails to meet the strict proof of contract terms needed. Moreover, Gemini’s signature is missing.
4. The signs in this car park are not prominent, clear or legible from all parking space, the photos provided by Gemini for the signs are from 2013 and mapping is not current.
The signs around the car park detailing the terms and conditions contain letters in a very small and pale yellow writing against a white background and it simply would not be possible to read any signs whilst in a moving car, thus the signage does not comply with BPA code of Practice.

In accordance with all of the above, I respectfully request that POPLA uphold my appeal and cancel this PCN.

Yours faithfully,

pathris

Hi All,

I am writing again as I have now received POPLA outcome and my appeal was refused :mad:
Please see below full details:

Assessor summary of operator case
The operator issued the Parking Charge Notice (PCN) due to no ticket.

Assessor summary of your case
The appellant states that the signage is not sufficient to bring the terms and conditions of parking to the motorist’s attention. Further, the appellant details that the operator has issued no Notice to Keeper. The appellant states that the operator has no legal standing to issue a Parking Charge Notice on the site. As evidence, the appellant has provided photographs of the site to show the lack of signage.

Assessor supporting rational for decision
I have not been able to confirm the driver of the vehicle from the evidence and admissions provided by the appellant. When entering private land where parking is permitted, you are entering into a contract with the operator by remaining on this land. The terms and conditions of this land should be displayed around this area. It is essential that these terms are adhered to in order to avoid a Parking Charge Notice (PCN); it is the responsibility of the motorist to ensure that this is the case. The terms of the site state “Pay and display… Tariff is located by pay and display machines… Tickets or permits must be clearly displayed in the windscreen of vehicle”. The operator has issued a PCN directly to the driver making use of the driver liability as outlined within the Protection of Freedoms Act (PoFA) 2012. Therefore, I must consider whether the Notice to Driver issued met the requirements laid out within this act. As it stands, the operator has not issued a Notice to Keeper due to an ongoing appeal for the PCN issued. I therefore cannot make a judgement or conclusion on it the Notice to Keeper is correct. However, having considered the requirements of PoFA 2012 (Schedule 4, Paragraph 7(2)), I am satisfied that the Notice to Driver issued on 9 October 2017 does meet these requirements outlined within this and that the operator is entitled to seek payment for the PCN from the driver. The appellant has raised that operator does not have a valid contract with the landowner and states that it is in breach of section 7 of the British Parking Association (BPA) Code of Practice, in its entirety. The operator has produced a witness statement to prove they can operate on the land. I am satisfied this meets the criteria to show it has the authority to operate on this land. An operator does not need to provide a full contract due to this containing commercially sensitive information. This meets the criteria set out in the BPA Code of Practice, section 7. Further the appellant details that the signage at site is not sufficient to bring the terms and conditions of parking to the motorist’s attention. For this reason, I have to consider whether the operator has provided evidence to satisfy the requirements of section 18 of the British Parking Association (BPA) Code of Practice. Section 18.1 states “in all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” Section 18.2 stipulates that, “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.” Furthermore, Section 18.3 states that: “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.” I accept that the evidence provided by the operator is date stamped in August 2013 and that between this date and the date of contravention is a significant period of time. However, the operator has provided a witness statement to prove they can operate on the land. With the evidence to show that signage was visible on the date of contravention to driver, and on the balance of probabilities due to the landowner authority confirmation, I am satisfied that the signage on site is in line with the requirements of the BPA Code of Practice and is “conspicuous” and “legible” and written in “intelligible language”. Please note that the signs do not need to be visible from the seat of a vehicle from each bay of the car park. Fundamentally, it is the motorist’s responsibility to check for any terms and conditions, and either adhere to them or choose to leave. The driver chose to stay, therefore accepting the terms and the parking charge that the operator has subsequently sent. After considering the evidence from both parties, I am satisfied that the operator issued the PCN correctly. Therefore, this appeal must be refused.

I now need to explore routes how to proceed further...

Umkomaas

As it stands, the operator has not issued a Notice to Keeper due to an ongoing appeal for the PCN issued. I therefore cannot make a judgement or conclusion on it the Notice to Keeper is correct. However, having considered the requirements of PoFA 2012 (Schedule 4, Paragraph 7(2)), I am satisfied that the Notice to Driver issued on 9 October 2017 does meet these requirements outlined within this and that the operator is entitled to seek payment for the PCN from the driver.

The NtD may well be compliant, but that does not make the keeper liable. As no NtK has been served (and Gemini admit this in writing), there can be no possibility of the keeper being held liable for the charge. This is the law of the land and POPLA are not in a position to misinterpret it, misrepresent it or ignore it.

You now need to file a complaint of a ‘procedural impropriety’ (use those words in the heading) to POPLA‘s Lead Adjudicator - John Gallagher.

System

You now need to file a complaint of a ‘procedural impropriety’ (use those words in the heading) to POPLA‘s Lead Adjudicator - John Gallagher.

+1

Shocking really that after all this time you get a result like this. How many others are like this? That assessor should have all their appeals investigated and he/she should be fired.