Unsuccessful POPLA appeal!

Jess158

Hi all.

I had a parking ticket which I appealed via Popla with help from the forum. Someone else on here had also gotten a ticket from the same
Place a few days before me, and I used the same templates etc as they did, same pictures, same comments etc, their decision was successful but I just got mine back today and it says they have refused my appeal
The other person won their appeal based on wording in the parking ticket which was the same as mine.

I’m really confused why mine would be rejected?
Do I now have to pay the £100?
Any advice/help would be greatly appreciated.

Jess158

PCN Number: 446569
POPLA Verification Code: 4160088553

Dear POPLA,

I write to you as the registered keeper of the vehicle LY64OGT. I wish to appeal the £100 Parking Charge Notice to Keeper (PCN) issued by Gemini Parking Solutions for ‘Failure to Pay for the Duration of Stay.’!

I submit the reasons below to show that I am not liable for the parking charge and would be grateful if you would respectfully consider my appeal:-

1. Gemini Parking Solutions' Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA).
2. Gemini Parking Solutions has not shown that the individual who it is pursuing is in fact liable for the charge.!
3. No contract was entered into between Gemini Parking Solutions and the Driver or Registered Keeper
4. No facility to make a cash payment
5.The car park had unclear, non-obvious, non-BPA-compliant signage, which failed to give adequate notice of the exorbitant purported parking charge and failed to transparently warn drivers of what the ANPR data would be used for, which breaches the BPA CoP and consumer protection law due to the inherent failure to indicate the 'commercial intent' of the cameras.


1. Gemini Parking Solutions' Parking Charge Notice To Keeper is not compliant with the Protection of Freedoms Act 2012 (POFA).

Whilst I am the registered keeper of the car, the driver has never been identified.

The PCN does not comply with the minimum requirements of paragraph 9 of schedule 4 of the Protection of Freedoms Act 2012 (POFA) and no liability for the keeper can therefore arise.

The burden of proof lies with the operator to demonstrate that it has issued the PCN correctly.

The provisions of POFA are not guidelines for operators to paraphrase at their discretion, but specific requirements laid down by primary legislation.

I refer to POPLA assessment and decision on 17th January 2018, involving Gemini Parking Solutions (verification code 4163477483) where the assessor stated:

“As the operator has not identified the driver of the vehicle, the Parking Charge Notice (PCN) will need to comply with the regulations set out in section 9 of PoFA, 2012. The Notice to Keeper will need to comply with section 9 of PoFA, 2012 that states that the creditor must: warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— . (i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and . (ii)the creditor does not know both the name of the driver and a current address for service for the driver, . the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid; The PCN provided by the operator states “failure to pay the amount within 28 days of the issue date may result in civil; enforcement ltd (the creditor) forwarding your account to a debt recovery agency”. Further, I do not consider the PCN requested the driver details from the keeper. I am not satisfied that this Notice clearly informs the appellant that if the creditor does not know the name of the driver the operator can recover the costs from the keeper of the vehicle. I cannot conclude that the Notice to Keeper does meet the requirements of PoFA 2012. Therefore, I must allow the appeal.”

I also refer to a second POPLA assessment and decision of 9 March 2017 involving Gemini Parking Solutions (verification code 4160317097) where the Assessor Ms Butler stated:

“For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. The operator has provided a copy of the Notice to Keeper sent. As the driver of the vehicle has not been identified, the Notice to Keeper will need to comply with section 9 of PoFA 2012. PoFA 2012 sets out to parking operators that: “2) The notice must – f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— The Notice to Keeper states “We now request this amount is paid using one of the payment methods described overleaf; If within 28 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle”. As such, I am not satisfied that the operator has met the minimum requirements of PoFA 2012 when outlining the period of 28 days beginning with the day after that on which the notice is given. I can only conclude that the Parking Charge Notice (PCN) was issued incorrectly. Accordingly, I must allow this appeal”


The wording in this PCN is identical to the wording in those assessments, which were found not to meet the minimum requirements of POFA. So, this is a charge that could only be potentially enforced against a known driver.

2. Gemini Parking Solutions has not shown that the individual who it is pursuing is in fact liable for the charge.

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, not by POPLA, nor the operator, nor even in court.

I am the keeper throughout (as I am entitled to be), and as there has been no admission regarding who was driving, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK. Only full compliance with Schedule 4 of the POFA (or evidence that a keeper was the driver) can cause a keeper appellant to be deemed by POPLA 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. Gemini Parking Solutions has failed to do this.

The vital matter of full compliance with the POFA 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.''

3. No contract was entered into between Gemini Parking Solutions and the Driver or Registered Keeper.

As Gemini Parking Solutions does not have proprietary interest in the land then I require them to produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what Gemini Parking Solutions is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.!

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Gemini Parking Solutions is required to produce evidence that it has the authority to form contracts with drivers on this land or to pursue charges. The signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Gemini Parking Solutions clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract.!

I contend that Gemini Parking Solutions merely holds a basic commercial licence to supply and maintain confusing signage and to issue 'tickets' as a deterrent to car park users.!

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:-

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 Gemini Parking Solutions would not be fully stated.!
It is not appropriate for a car park such as this to have such a limited amount of signs with such poorly displayed terms, putting the onus clearly on drivers to search carefully for where and how the terms are displayed. It is surely the responsibility of Gemini Parking Solutions to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require Gemini Parking Solutions to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park.

I request that Gemini Parking Solutions provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific detail including an agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Consumer Rights Act 2015.


4. No facility to make a cash payment

There is no facility to make a cash payment at this location. If an operator does not accept cash payment, no debt can accrue. Permitting payment only by mobile phone amounts to indirect age discrimination contrary to the Equality Act 2010 and moreover is impossible in circumstances where the driver either does not have a mobile phone or where the battery has died during the 3-hour free parking period, thereby frustrating any contract in existence (which is denied).


5. The car park had unclear, non-obvious, non-BPA-compliant signage, which failed to give adequate notice of the exorbitant purported parking charge and failed to transparently warn drivers of what the ANPR data would be used for, which breaches the BPA CoP and consumer protection law due to the inherent failure to indicate the 'commercial intent' of the cameras.

a) Unclear, non-obvious, non-BPA compliant signage which failed to give adequate notice of the exorbitant purported parking charge

The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. They contain letters in very small writing that are above head height for the average person (this would be around 1.7 metres according to latest research for adults).!

There was no contract nor agreement on the 'parking charge' at all. The driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear. The Supreme Court were keen to point out the decision related to that car park and those facts only. In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

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

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court and swayed it into holding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, much of the wording is illegible, particularly given its small size and use of barely visible yellow text against a white background. ‘Adequate notice of the parking charge’ is mandatory under the POFA Schedule 4 and the BPA Code of Practice, but these signs do not clearly mention the parking charge which is hidden in small print.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park were inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

Under Lord Denning's Red Hand Rule, the extortionate purported parking charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in Beavis. A reasonable interpretation of the 'red hand rule' and the BPA Code of Practice would require a parking charge and the terms to be displayed far more transparently, in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this car park at all, I submit that the persuasive case law is in fact Vine v London Borough of Waltham Forest [2000] EWCA Civ 106 where the driver who had not seen the terms was consequently NOT bound by them. This judgment is binding authority from the Court of Appeal and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.

As a POPLA assessor has said previously in adjudication:

‘Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the operator to demonstrate that the signs at the time and location in question were sufficiently clear.’ Gemini Parking Solutions have failed to do this.

The tiny lettering was not visible (readable) to be seen by any driver entering the car park. This is not mitigating circumstances but failure by Gemini Parking Solutions to ensure that the full terms included in their signs were to be seen accordingly. The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. The signs must be visible at all times of the day; these requirements were not met and I demand strict proof that those signs are visible.

Furthermore, the landmark case of Beavis establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges. Gemini Parking Solutions has not provided evidence that such signs, if present, were available throughout the car park and visible, from the area where the car was parked at the time of the event.

The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.

Paragraph 21.1 of the British Parking Association Code of Practice (CoP) advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The CoP requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

Euro Car Parks’ signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside the car park.

It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.
In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

and Paragraph 69: Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a) the commercial practice omits material information,
(b) the commercial practice hides material information,
(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,
and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''
It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.


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

Jess158

My comments on th evidence


The PCN wording exactly replicates that found not to meet the requirements of POFA in 2 recent POPLA appeals (4163477483 & 4160317097). The driver has not been identified and I cannot be held liable for this charge.
An unredacted ANPR agreement must be provided so that the hidden terms can be considered. Without this, POPLA cannot be satisfied that all the terms are met and that the operator has landowner authority. The agreement appears to have been signed not by the landowner, but a managing agent. No evidence has been submitted to show that the managing agent has authority from the landowner. The agreement does not contain an adequate description of the land so that the boundaries of the land can be clearly defined as required by 7.3(a) BPA Code of Practice. The Location is defined as the locations detailed in Part II of the Schedule, but the schedule has no Part II. The manuscript address at the end of the document is illegible and does not describe the boundaries of the land. Under 3.1.5 of the agreement, the operator is required to maintain sufficient signage to adequately advise drivers of the conditions of parking. As this requirement has not been met the operator is not authorised.
The operator has not provided a site map but multiple copies of the same photographs of signage in unspecified locations. There is no evidence that this vehicle was parked close to a sign or that the driver would have seen the signage. The parking charge cannot be seen in any of the photographs provided by the operator (taken in perfect, summertime conditions) and is barely visible in even the computer-generated images of the signage. Note the operator feels the need to highlight the parking charge with red boxes and circles in its evidence - the charge is not transparent.
A small camera logo does not comply with 21.1 BPA Code of Practice - Signs must tell drivers what you will use the data captured by ANPR cameras for.The operator has conceded that this has not been satisfied.

Jess158

Popla decision comments

When it comes to parking on private land, a motorist accepts the terms and conditions of the site by parking their vehicle. The terms and conditions are stipulated on the signs displayed within the car park. The operator has provided both PDF document versions and photographic evidence of the signage displayed on site. The signs state !!!8220;Vehicles parked beyond the 3 hour free period must pay for their duration of stay. Payment should be made after the free parking period has expired. Charges apply Monday- Sunday 6am-7pm.!!!8221; The car park in question is monitored by Automatic Number Plate Recognition (ANPR) cameras. The operator has provided photographic evidence of the appellant!!!8217;s vehicle entering the site at 10:33am and exited the site at 14:58pm. The images captured by the ANPR cameras confirm that the appellant!!!8217;s vehicle remained on site for a total of four hours and 25 minutes. The operator has provided a copy of a system generated print out that shows that no parking was purchased on the date of the event. I note the appellant!!!8217;s comments and the evidence provided to support their reason for parking at the site in question. I further note that the appellant was a genuine visitor to the site on the date of the event. I acknowledge the appellant has provided photographs of the signage on the site. In the British Parking Association (BPA) Code of Practice, section 18.3 !!!8220;signage tells drivers what your terms and conditions are, including the 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.!!!8221; Section 18 of the BPA Code of Practice also explains, that signs !!!8220;must be conspicuous and legible and written in intelligible language so that they are easy to see read and understand.!!!8221; I consider that the photographic evidence show that the operator met the minimum standards set by the BPA by displaying clear and sufficient signage throughout the car park in clear view to motorists. In this case, it is not clear who the driver of the appellant!!!8217;s vehicle is, so I must consider the PoFA 2012, as the operator issued the Parking Charge Notice (PCN) to the keeper of the vehicle. The operator has provided me with a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant. The appellant states there was no facility to make cash payment, if the appellant was unable to make a payment they are required to exit the car park if they cannot comply with the terms and conditions. The onus is on the appellant to ensure parking time is purchased after exceeding the three hour free stay. Ultimately, it is the responsibility of the motorist to ensure that when they enter a car park, they have understood the terms and conditions of parking. If the appellant suspected that the terms and conditions of the site could not be complied with, there would have been sufficient time to leave the site without entering into a contract with the operator. By remaining parked on site, the appellant accepted the terms and conditions. On this occasion, the appellant has failed to follow the terms and conditions of the signage at the site. I conclude that the operator issued the Parking Charge Notice correctly. Accordingly, I must refuse this appeal.

The_Deep

[FONT=Times New Roman, serif]This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences. [/FONT]

[FONT=Times New Roman, serif]Parking Eye, Smart and a smaller company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (who take hundreds of these cases to court, and nearly always lose), who have also been reported to the regulatory authority. [/FONT]

[FONT=Times New Roman, serif]The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.[/FONT]

[FONT=Times New Roman, serif]http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41[/FONT]

[FONT=Times New Roman, serif]and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.[/FONT]

Jess158

I wish I!!!8217;d just paid the bloody ticket straight away now

The_Deep

Why, win PoPLA or lose PoPLA they are still scammers, and if they take you to court you will have another chance to prove it.

Quentin

Edit your posts to remove the unique information you have posted that identifies you


The ppcs monitor this forum and can use your posts against you

Jess158

Because I would have had to pay less.
I agree they are scammers but I am not prepared or able to go to court with this. My mother/grandma are both disabled and very ill, grandma is dying and mother has just had a big operation, I am a carer for them both and have neither the physical or mental ability to deal with court cases for a parking ticket unfortunately.

Jess158

Thanks Quentin I thought I had edited it out, but had to copy and paste again as the first post was too long and must have forgotten to edit the info out sigh.

Unfortunately at work on my mobile at the moment and will not have access to a laptop to edit until later this evening.

Quentin

Jess158 wrote: »

Do I now have to pay the £100?
Any advice/help would be greatly appreciated.

No.


Losing at POPLA doesn't mean you have to pay!


Ignore everything now except a lbcca or Court correspondence


Creditors have 6 years to start legal action


Have you checked out your creditor at the BMPA website - see what they do regarding going all the way to a hearing! (Though who can say what their approach to going to court will be in the future)