Gemini Parking Popla stage

Spine

Hi All

Some help please - first time on this forum!

Background:
A PCN to keeper was received from Gemini Parking Solutions "for not parking within a marked bay" (they included a couple of small photos).
Nothing was issued on the windscreen at the time so it is to keeper only.

The operator claims that the terms and conditions are clearly displayed on the signs on-site.
The parking in the area is free (London park with a National Sports Stadium) and there are multiple sites where cars can be parked without such restrictions on the road and various car parks doted around and there are many large prominate signs showing the opening and closing times of the gates to the Park (put up by the council) which has nothing to do with Gemini Parking solutions.
I suspect it was only recently this operator had began to manage a small area of the land near the sport stadium in which the vehicle was parked with the small signs hidden under the trees on parking spaces on route to the car park in that part of the area.

Now at the Polpla appeal stage having appealed using the standard template from this forum and rejected by the operator as expected (although they did take their time to reply - just within 35 days)
The operator had sent 6 photos of the vehicle parked in an area which has no marked bays (infact was not in main car park but actually a path leading to the just before the main car park).
They have also include an isolated cropped photo of a sign, quarter size of a A4 on paper (presumable illustrating its terms and conditions) which has a lot of text and lines and unreadable apart from "GEMINI" "Parking Notice" in large letters (all in blue text against a white background).
All taken within 90 seconds according to the date stamp on the photos.
Note that in all the 6 photos taken from different angles there are no signs or notices which can be seen.

Also some extract quoted from the operator response to the std template :
"...as keeper of the vehicle in question and will not provide details.....the keeper becomes liable for the PCN).
- there was a whole paragraph on this, so I take it note 4 below is a weak point?

They also responded to the template regarding the grace period:
"In regards to your comments about the grace period, we ensure that our operatives allow enough time before issuing a PCN to a vehicle"
- their get out clause for suspect predatory practices perhaps??

I am appealing on the grounds of:

1. The entrance signs are inadequately positioned and lit and 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
- Main ground of appeal.
Would it be wise to scrutinise the evidence the operator had given to me now as it really is quite weak or just use my own photos which are essentially the same, but without the vehicle present but to include additional photos to illustrate obsure signs on route to the parking spot?
Perhaps use both?

2. Grace Period: BPA Code of Practice – non-compliance
- next strong point....even though no restriction on how long the car can be parked - no signs could be seen by the driver at the spot so no opportunity to read the terms - it was just predatory practice being employed here.

3. No Evidence of Landowner Authority - the operator is put to strict
proof of full compliance with the BPA Code of Practice

4. The operator has not shown that the individual who it is pursuing
is in fact the driver who was liable for the charge

5. Non compliant POFA 2012?
No mention of this on PCN to keeper and only mentions the time and date parked but fails to mention how long the vehicle was parked (reinforces point 2?)

I would really appreciate some advice here before drafting the appeal.

Many thanks

MistyZ

I don't think omission of period parked will be relevant as that is not the alleged infraction. I might be wrong.

However seems like POFA non-compliance may still be an important point to make for other reasons, take a look at this thread, particularly post 11:

https://forums.moneysavingexpert.com/discussion/5993206/gemini-parking-charge-popla-appeal-help&highlight=gemini

Umkomaas

If Gemini’s NtK doesn’t have the exact PoFA wording, then this is a sure-fire win for you at POPLA (on condition you have not identified the driver in any correspondence with Gemini). This point alone will result in POPLA finding for you.

Please scan the NtK and let us see both sides of it. I can’t recall seeing a recent Gemini attempt at transferring liability to the keeper.

NEWBIES - HOW TO UPLOAD LINKS TO PHOTOS/SCANS TO MSE

To upload a photo/scan link, you first need to host it on a free photo hosting site (like Dropbox or Imgur), copy the URL, paste it here, but change the http to hxxp and we'll do the conversion. Newbies can't directly upload links to photos/scans until they've a few posts under their belt.

Spine

Thanks Umkomass
No - not identified the driver - just used the standard template with no modification from this forum to get a Popla code.



Link to the NtK :


hxxps://imgur.com/QVW1NwD
hxxps://imgur.com/dfslFjS


Also an image of the rejection letter from Gemini's internal appeal:
hxxps://imgur.com/KkbK2QY

Umkomaas

https://imgur.com/QVW1NwD
https://imgur.com/dfslFjS

:rotfl:

That's not even close to being a PoFA compliant NtK. It started out alright with 'If after 29 days', but then it looks like they couldn't understand the Act much after that in order to get the rest of the essential wording correct.

Gemini fail, Spine win (at POPLA).

Do a forum search on keywords 'POPLA NtK not compliant' and read other appeals covering No Keeper Liability and draft your own based on previous successes. This will be your first appeal point, although you will cover other points too like signage, landowner contract, no locus to bring charges etc., but it shouldn't be necessary for POPLA to go further than your first point.

Let us see your draft when completed.

Read the following link to PoFA, para 8 to understand the full wording required by the Act:

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

HOW TO USE THE FORUM SEARCH FUNCTION:

Hit your 'Back' button to get back to the forum thread list. On the bar just above the threads you'll see the 'Search' function. Click on the 'Advanced Search' button and on the following page place your keyword(s) in the 'Search By Keyword(s)' and make sure the 'Show Results As' button (at the foot of the window) is changed from 'Threads' to 'Posts'.

https://imgur.com/KkbK2QY

What they say about the keeper now becomes liable is incorrect as Gemini have failed PoFA requirements. It is designed to mislead you and this should be subject to a complaint to the DVLA, asking them to investigate. By doing this, the only thing being transferred will be the headache they are trying to give being passed back to them.

ccrt@dvla.gov.uk

Spine

Just managed to get round to doing this - was a bit tricky as they are so many variations and Gemini never seems to back off easily from the Popla stage from looking at the forum.

I was however, a bit thrown off that Gemini - had completely removed any reference to PoFA from the NTK re:

"If after 29 days we have not received full payment or driver details, we have the right to recover the parking charge amount that remains unpaid"

Compared to previous NTK from other posters the wording included "PoFA 2012 and recovery from keeper etc.."

Anyway I here is my draft appeal - would be grateful for any comments!
I did struggle to put together the first point PoFA - not sure if there's any thing else I can add.

I did a bit on the signage as the signs - I'm not sure if I should include the photos (I do have more!) or how relevant they are - I wouldn't want it to backfire...!






POPLA Verification Code: xxxxx
Vehicle Registration: xxxxxxx


I, the registered keeper of this vehicle, received a letter dated xxxxx acting as a
notice to the registered keeper. My appeal to the Operator – Gemini Parking Solutions – was
submitted and acknowledged by the Operator on xxxxxx and rejected via a
letter dated xxxxxx. I contend that I, as the keeper, am not liable for the alleged
parking charge and wish to appeal against it on the following grounds:


1. Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due the wording used.


2. The entrance signs are inadequately positioned and lit and 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


3. Grace Period: BPA Code of Practice – non-compliance


4. The operator has not shown that the individual who it is pursuing
is in fact the driver who was liable for the charge


5. No Evidence of Landowner Authority - the operator is put to strict
proof of full compliance with the BPA Code of Practice








1. Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due the wording used.


Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12.

Gemini Parking Solutions have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

9(2) The notice must —

(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 the creditor have the right to recover from the keeper so much of that amount as remains unpaid after the period of 28 days beginning with the day after that on which the notice is given


FAILURE TO COMPLY WITH 9(2)(e)OF SCHEDULE 4:
The NTK posted by this operator asks the keeper recipient to name the driver but fails to include the mandatory words:

''...and to pass the notice on to the driver''.

The whole point of this section - and the clear intention and will of Parliament - is that keepers are to be informed in the first letter, that if they were not driving, they are to pass the Notice to the driver. I was not informed about this and had no opportunity to pass the notice to the driver, and instead understood from the NTK that (if I chose not to name the driver, as was my right) I had to either pay it or appeal it. So I am appealing it as registered keeper and the wording has misled me on a fact of the applicable law.

FAILURE TO COMPLY WITH 9(2)(f) OF SCHEDULE 4:
The NTK posted to me fails to use the right period of time or wording, in its crude attempt to paraphrase 9(2)(f).

It says (wrongly and very loosely):

"If after 29 days we have not received full payment or driver details, we have the right, to recover the parking charge amount that remains unpaid''

This timeline is incorrect as it misses out the fact that the period begins only on the day after the notice was given, and it also fails to even inform me what relevance the (top right) 'issued date' has or what 'date given' means, as they have omitted that phrase entirely. The wording is wrong and ambiguous as to charge to whom it shall be recovered from.

So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was - and that person was not me.

Failure to comply with sections of the applicable law - namely 9(2)e, and f of the POFA - are significant omissions and errors which are fatal to any postal PCN attempting to transfer liability to the registered keeper. It is in the public domain that POPLA (this current version of POPLA, as well as the previous London Councils service too) have found before, many times and consistently for years, that NTKs with the words 'after' or 'within' 28/29 days and the loose phrase 'or driver details' fail to meet the statute and are PCNs that were not properly given.


In fact, there is no reference to POFA 2012 in NTK or what legislation the operator is relying on to pass liability to the keeper. The NTK is misleading and uses incorrect wording.





2. The entrance signs are inadequately positioned and lit and 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.


There was no contract nor agreement on the 'parking charge' at all. It is
submitted that 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.


Inadequate signage
The signs in this car park are not prominent, clear or legible from all parking spaces or before entry.
On request, Gemini Parking had submitted some close up photo of the vehicle in question and an isolated unreadable close up sign of a notice.
On a recent visit after the alleged contract and on locating the position from where the vehicle was parked (illustrated by arrow) – it is clear apparent that there are no signs in view for the driver to see.
See Fig.1 and 2.


Fig.1
hxxps://imgur.com/zQMLygq


Fig.2


hxxps://imgur.com/1GODoUA





Gemini Parking Solutions claims that the terms and conditions are clearly displayed on the signs on-site but it is clearly not the case.


Fig.3 below shows the path the car would need to have taken to arrive at the spot in question (one – way traffic coming towards camera shot) – as you can see, anyone driving up here would find it extremely difficult to spot any signs.

Fig.3
hxxps://imgur.com/QX8kxho


Furthermore, it is unclear and confusing to where the terms and conditions applies throughout the area. There are no signs to the entrance of the car park to notify drivers and signs are located in obscure and hard to see places.


Fig. 4 illustrates the approach to what is presumably the start of the parking areas.
Note the parking on the left with no marked bays nor signs visible. On further investigation, most of areas and neighbouring car parks inside this large park do not have such terms and conditions as per quoted by this operator.


Fig.5 shows the area where marked bays start - presumably the entrance to parking area. Again no
signs can be seen in the line of view.


Fig.4

hxxps://imgur.com/Ugues13

Fig.5
hxxps://imgur.com/ksperQu



I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that 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 and not a typical example for this notorious industry. 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, according to the Judges.

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






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

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

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 where other unrelated signs were far larger, was 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.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:


As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:



''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the 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 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and 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 appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:



This was a victory for the motorist 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. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

Spine

3. Grace Period: BPA Code of Practice – non-compliance
The NTK fails to state the period of contravention and the hence Operator has not complied with BPA code 13.


The BPA’s Code of Practice states (13) that there are two grace periods: one at
the end (of a minimum of 10 minutes) and one at the start.


BPA’s Code of Practice (13.1) states that:
“Your approach to parking management must allow a driver who enters
your car park but decides not to park, to leave the car park within a
reasonable period without having their vehicle issued with a parking
charge notice.”


BPA’s Code of Practice (13.2) states that:
“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.”


BPA’s Code of Practice (13.4) states that:
“You should allow the driver a reasonable period to leave the private car
park after the parking contract has ended, before you take enforcement
action. If the location is one where parking is normally permitted, the
Grace Period at the end of the parking period should be a minimum of 10
minutes.”


BPA’s Code of Practice (18.5) states that:
“If a driver is parking with your permission, they must have the chance to
read the terms and conditions before they enter into the contract with you.
If, having had that opportunity, they decide not to park but choose to leave
the car park, you must provide them with a reasonable grace period to
leave, as they will not be bound by your parking contract.”


The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the
car park should be a minimum of 10 minutes. Whilst 13.4 does not apply in this
case (it should be made clear - a contract was never entered in to), it is
reasonable to suggest that the minimum of 10 minutes grace period stipulated
in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s
Code of Practice.


Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking
Association (BPA):


“The BPA’s guidance specifically says that there must be sufficient time for
the motorist to park their car, observe the signs, decide whether they want
to comply with the operator’s conditions and either drive away or pay for a
ticket.”
“No time limit is specified. This is because it might take one person five
minutes, but another person 10 minutes depending on various factors, not
limited to disability.”


Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus
ParkingEye – Tower Road, Newquay) which was successful on the grounds that
the assessor believed 11 minutes was a “reasonable grace period” and that “by
seeking alternate parking arrangements, the appellant has demonstrated that he
did not accept the conditions of the parking contract.”




This shows that the intention of stating vaguely: 'a minimum of ten minutes' in the
current BPA CoP (not a maximum - a minimum requirement) means to any
reasonable interpretation that seconds are de minimis and therefore not taken
into account – certainly an allegation of under eleven minutes (as is the case
here) is perfectly reasonable.


As stated earlier in this section, whilst 13.4 does not apply in this case (as a
contract was never entered in to), it is not unreasonable to suggest that
clarification of this time period in relation to 13.4 also goes some way to clarifying
the terms “reasonable period” and “reasonable grace period” stated in 13.1 and
13.2 respectively of the BPA’s Code of Practice.


If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a
car park after a period of parking, it stands to reason that at least the same period
of time is reasonable to also enter a car park, locate (and read) terms and
conditions decide not to enter into a contract and then leave the car park.












4. The operator has not shown that the individual who it is pursuing is in fact
the driver who was 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.


In this case, no other party apart from an evidenced driver can be told to pay. I
am the keeper 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, because the fact
remains I am only appealing as 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 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 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 cannot 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.''






5. No Evidence of Landowner Authority - the operator is put to strict proof of
full compliance with the BPA Code of Practice


As this operator does not have proprietary interest in the land then I require that
they 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 this operator 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 Code of Practice) 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).


Paragraph 7 of the BPA Code of Practice 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.








Yours faithfully
XXX
(registered vehicle keeper)

The_Deep

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Spine

Just revisited the parking spot and have just noticed the operator has put up a sign right next to the where the car was parked.....:huh: They must have done it over the weekend! It wasn't there last Friday....
I suppose they will try and include that in the Popla appeal...

MistyZ

Spine wrote: »

Just revisited the parking spot and have just noticed the operator has put up a sign right next to the where the car was parked.....:huh: They must have done it over the weekend! It wasn't there last Friday....
I suppose they will try and include that in the Popla appeal...

Well if they submit evidence as opposed to not contesting the appeal, then you will easily be able to refute it. In fact you can even supply a very recent date - last Friday - when it was not there.

KeithP

Spine wrote: »

Just revisited the parking spot and have just noticed the operator has put up a sign right next to the where the car was parked.....:huh: They must have done it over the weekend! It wasn't there last Friday....
I suppose they will try and include that in the Popla appeal...

This further confirms that previously the signage was inadequate.

Why else would they add another sign?