Gemini Parking Solutions London LTD - Reading, Rivermead Leisure Centre

KeithP

DiamondDog wrote: »

As far as I can tell the template is the correct response then?

Yes, posts #2 and #4 told you that.

So that's three of us that all agree.

DiamondDog

Thanks guys! I have sent the template off this evening. Fingers crossed they do one!

DiamondDog

Hi Coupon & Keith,

They finally got back to me with the below;

Dear Appellant,

We have considered your appeal in relation to parking charge notice XXXXXX and now attach our detailed decision.

If payment or further action is required, details of what to do next are outlined in this letter. If your appeal has been upheld no further action will be required.

DO NOT REPLY TO THIS EMAIL.


The contents of the attachment read;

18 December 2018
Parking Charge Number: XXXXXX Vehicle Registration: XXXXXXX Date PCN Issued: 19/11/2018 Incident Date: 08/11/2018 Location: Rivermead Leisure Centre Contravention: Failure To Pay For The Duration Of Stay POPLA Verification Code: XXXXXXXXXX


Dear

You recently contacted us to appeal the Parking Charge Notice (PCN) XXXXXX that was issued to the driver of vehicle registration XXXXXXX on 19/11/2018 at Rivermead Leisure Centre, Richfield Avenue, Reading, West Berkshire, RG1 8EQ. This PCN was issued because the vehicle broke the following parking regulation: Failure to Pay for Duration of Stay.

After reviewing your appeal, we understand you are not willing to share the driver’s details and was not aware of the payment system. Whilst we do appreciate your genuine comments, we can confirm that all motorists are entitled to 30 minutes free parking, and thereafter a valid payment must be made to validate the stay. The only pay and displays machines that are in operation are located next to the leisure centres main entrance. All motorists are also given the opportunity to pay by phone by using the RingGo facility.

We have carefully considered your appeal. Unfortunately, for the reasons below, your appeal has been unsuccessful.

• Parking regulations are displayed on clearly visible signs at the entrance and throughout the location.

• Those regulations include that all motorists are entitled to 30 minutes free parking, thereafter all motorists must pay for the full duration of their stay. There are 2 pay and display machines located within this car park that accept card payments and cash. Motorists are also given the opportunity to pay by phone on entry on the day by using the RingGo facility.

• On the date of contravention, there was no payment allocated to the above vehicle registration. This indicates that 1 hour and 11 minutes of the vehicle`s stay remains unpaid – hence the PCN was issued.

• Unfortunately, the mitigating circumstances cited as part of your appeal do not provide sufficient evidence that this PCN was issued incorrectly.

When parking on private land, the motorist agrees to abide by any clearly displayed conditions of parking in return for permission to park. This location is private property and is managed by Gemini Parking Solutions London Ltd on behalf of the land owner.

Gemini Parking Solutions fully complies with the guidelines set by the British Parking Association. Photographic evidence is taken with every PCN that is issued.

Payment at the discounted rate £60.00 can be made within 14 days from the date of this letter. Regrettably payments made after this period will be for the full amount of £100.00. Failure to pay the amount may result in further costs being incurred and may also result in Gemini Parking Solutions Ltd, reluctantly instructing a Debt Collection agency to collect any sum due.
Yours Sincerely,
Appeals Centre


You have now reached the end of our internal appeals procedure and therefore you now have two options: You can pay the total amount due or you can appeal to an Independent Appeals Service, POPLA (Parking on Private Land Appeals) using the POPLA Reference code provided. Should you wish to make a second appeal, this can be done through POPLA – the independent appeals service – at website

Any appeal to POPLA must be received within 28 days of the date on this letter. Please note that if you do appeal to POPLA, you lose the right to pay the discounted rate of £60.00. Should POPLA’s decision not go in your favour, you will then be required to pay the full amount of £100.00.

By law we are also required to inform you that Ombudsman Services (website) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.

The URLs arent working due to the spam filter.

What are my next steps here?

Thanks again for all your help!

KeithP

DiamondDog wrote: »

What are my next steps here?

Appeal to PoPLA within the timescale given and using the code provided.

Exactly how to do that is explained in the greatest detail in post #3 of the NEWBIES thread - that thread where you found the blue template appeal back in November.

beamerguy

@DiamondDog


Then you appeal to POPLA.

What pictures of your own do you have of the signs

Gemini ? What do YOU expect from parking scammers ?

Gemini are simply part of the increasing scammers club operated by the BPA.

DiamondDog

Hi again guys,

First of all happy holidays to you all! I have found a few POPLA appeals for Rivermead online, and used a previous one and tweaked it for my own case. Would be very grateful if someone could take a look over and check this all makes sense and holds up? Also,should I go and take my own pictures of the car park signage now, and include them in the appeal?

PCN Number: x x
POPLA Verification Code: x
Dear POPLA,

I write to you as the registered keeper of the vehicle x. I wish to appeal the £100 issued Parking Charge Notice (PCN) 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) as schedule 4 paragraph 9 (2) (c) is missing. No parking charges due from the driver are described, nor does it invite the keeper to pay the unpaid charges.
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. The car park had unclear, non-obvious, non-BPA-compliant signage.


1. Gemini Parking Solutions' Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) as schedule 4 paragraph 9 (2) (c) is missing. No parking charges due from the driver are described, nor does it invite the keeper to pay the unpaid charges.

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

Under schedule 4, paragraph 9 of the Protection of Freedoms Act 2012, for the creditor (Gemini Parking Solutions) to have the right to recover any unpaid parking charges from the keeper of the vehicle (myself), certain conditions must be met by the notive to keeper. These are stated in schedule 4, paragraph 9. Gemini Parking Solutions has failed to fulfil the conditions of paragraph 9 (2) ; paragraph 9 (2) states:-
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)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;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).

The operator has failed to comply with these, as described, on the notice to keeper.

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 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 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.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA.

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.''


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 has failed 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.

In my email appeal to Gemini Parking Solutions on 11th December 2018 I asked them to provide me with all photos taken and an explanation of the allegation and evidence as below.
- If the allegation concerns a PDT machine, the data supplied in response to this appeal must include the record of payments made - showing partial VRNs - and an explanation of the reason for the PCN, because your Notice does not explain it.
- If the allegation involves an alleged overstay of minutes, your evidence must include the actual grace period agreed by the landowner. If you fail to evidence the actual grace period that applies at this site or suggest that only one period applies, this will be disregarded as an attempt to mislead. In the absence of evidence, it will be reasonably taken to be a minimum of twenty minutes (ten on arrival and ten after parking time) in accordance with the official BPA article by Kelvin Reynolds about 'observation periods' on arrival being additional and separate to a 'grace period' at the end.
- in all cases, you must include a close up actual photograph of the sign you contend was at the location on the material date. a copy of the contract that it holds with the landowner to entitle it to perform the aforementioned actions. This was so that I could be satisfied that the contract permits Gemini Parking Solutions 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.

Gemini Parking Solutions has failed to produce any of the above in their response on 18th December 2018, despite my request under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 on 11th December 2018.

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 would specifically like them to examine how clear the signs are that inform drivers that ‘vehicles are to park within a marked bay only…..vehicles causing an obstruction may be issued with a parking charge.’ The use of the word may, in itself is extraordinarily ambiguous and is entirely inappropriate to enforce terms and conditions of parking.
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 Unfair Terms in Consumer Contract Regulations 1999.


4. The car park had unclear, non-obvious, non-BPA-compliant signage.
The signs around the car park detail the terms and conditions of parking. 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).

I appealed the PCN to Gemini Parking Solutions via email on 11th December 2018. In their email reply to me on 18th December 2018 rejecting my appeal, they failed to include any photographic evidence of the signage within the car park.
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 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.
The BPA Code of Practice, Appendix B, under Contrast and illumination:
Signs should be readable and understandable at all times.
Furthermore, the landmark case of ParkingEye v Beavis [2015] UKSC 67 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.

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

Yours faithfully

Umkomaas

Quick skim - appears on the right lines. Definitely go and get photos, taken in the same lighting conditions as at the time of the parking event. If at night, taken without flash, but you also need some that are fully legible if you're going to argue the signage wording.

In terms of a signage appeal point, have you used the template from the NEWBIES FAQ sticky, post #3 (although you might have melded some of that into the 'no contract' appeal point you've drafted?).

I've not read back through the thread, but is there anything around grace periods you could use?

DiamondDog

I don't think there is anything I can use with regards to grace periods.

I will go and get pictures this weekend and attach them.

Is there anything obvious in the body that needs changing or adding to? A huge amount of what it says goes over my head - it has mainly been adapted from appeals I have found on this forum and other websites. :rotfl: