Help please gemini parking solutions ticket

mumduke

Please i was just wondering if anybody can help me go trough my POPLA rebutt that is due to be submitted on Thursday the 22/11. This is the story:
Got a ticket from Gemini parkng while parked at a supposedly "no parking" area, i followed the NEWBIE thread and replied on day 28th using the one size fit all template and got a refusal as expected, again followed the NEWBIE thread and advice on this forum and went on to POPLA stage, now POPLA has sent me the reply/evidence from Gemini and asked me to rebutt it.
So am posting here to see if anyone can read thru and suggest any changes that might be needed. Thanks .

My reply:
1. In rebuttal to the claim by Gemini parking solutions (GPS) that there are a number of clearly displayed signs advising on terms and conditions of parking, I refer to one of the evidence provided by GPS (the parking signage). This signage mounted on a high pole is inadequate and illegible in a number of ways not least due to the sheer amount of text that must be read. The terms on the signage are displayed in a mix of large font, small font and capital letter therefore is deemed unclear to be read from any reasonable distance such that it cannot be read from within a parked vehicle especially if parked by the entrance of the land where the vehicle was parked at the time the PCN was given. It simply would not be possible to read the signs sufficiently to have been deemed to fully understand the T&C's. It is therefore denied that the Claimant’s signage is capable of creating a legally binding contract. Moreover there is nothing to show how close the car was parked to a sign and GPS has not in any way shown that the sign was anywhere close to where the vehicle was parked. Fig. 1 and 2 of my initial appeal clearly shows that there was no signage in view all around the place where the vehicle was parked at the time.
Furthermore, I refer to the BPA: CoP which GPS has failed to comply with despite claiming otherwise:
Section 18, paragraph 2 (S18P2):“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. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.

Figure 3. in my initial appeal clearly shows there was no parking signage mounted at the entrance and the fact that GPS has not bothered to mount a signage at the entrance means that a driver is not able to read the notice and T&Cs until they have driven into the land, this means drivers are not able to make informed decision before entering.

GPS flaunts the BPA:CoP while claiming to follow it, this shows that GPS lacks integrity and cannot be trusted. Flaunting BPA:CoP guidelines S28P1 and S28P8, are gross failures in themselves, but the fact that GPS is so inept that they have failed to follow both these guidelines means that drivers can easily enter, and use the land, without having any idea that they are consenting to or entering a controlled parking area.
In light of this, and in addition to these points, I will reiterate point 3 of my initial appeal, which GPS has failed to adequately address:

3. The signs are inadequately positioned and lit and signs in this car park are neither prominent nor legible from all parking spaces


2. Accordingly GPS have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act (POFA)2012 namely, but not limited to, failing to deliver the notice within the relevant period of 28 days after the day of PCN as prescribed by section 9 (4) of the Act. GPS has not attached any proof of notice to keeper (NTK) and this is because they never sent any notice to the registered keeper hence have failed to meet the POFA 2012 keeper liability requirements. The onus is therefore on GPS to provide their proof of service of NTK or any proof of them requesting details of drivers which they claim to have sent in their evidence.

The BPA:CoP also supports the need for strict compliance in Section 21, paragraph 5:
“If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9).”

GPS cannot transfer liability for the alleged charge from the driver at the time to the keeper of the vehicle

3. GPS do not own the land mentioned in the PCN and have not provided any evidence that they are lawfully entitled to demand money from a driver or vehicle keeper.
Under the BPA CoP section 7, a person or organisation carrying out parking control and enforcement on a private land they do not own, must have a written authorisation of the landowner (or their appointed agent) before operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.

Coupon-mad

You only get 2000 characters (not words) to comment on evidence!

Remove the two full quotes of the BPA CoP as you can't add them now:

Furthermore, I refer to the BPA: CoP which GPS has failed to comply with despite claiming otherwise:
Section 18, paragraph 2 (S18P2):“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. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.

Under the BPA CoP section 7, a person or organisation carrying out parking control and enforcement on a private land they do not own, must have a written authorisation of the landowner (or their appointed agent) before operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.

With no NTK and no landowner contract (no landowner witness statement, nothing?!) they will lose at POPLA.

You need to move your 1st point down to be the 3rd one as the others are the winners. And then shorten that point about signs, so your entire comments (including spaces) don't exceed 2000 characters.

The_Deep

[FONT=Times New Roman, serif]It is not a fine, it is an invoice from an ex- clamper for damages for the harm they allege they suffered when you did what you did. We call it a scam. Pay them not one penny unless a judge so orders it.[/FONT]


[FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP after the election, it can cause the scammer extra costs and work.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

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

mumduke

yes they did not attach any landowner contract nor landowner witness statement at all the only evidence they uploaded were, images of the vehicle parked at the location, a copy of the PCN (front and back), their long and very repetitive statement and a blurry photo of the signage

mumduke

Just got a reply from POPLA and it successful yeeeaaaayyyyyy

POPLA assessment and decision
02/12/2019
Decision Successful
Assessor Name xxxxxxxx
Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) as the vehicle was parked in a No Parking area

Umkomaas

Well done. Are you going to copy the full assessment here so we know the basis of the decision?

If you wouldn't mind, would you put a few paragraphs into that woefully unprofessional wall of text POPLA chuck out, in order to make it more readable.

mumduke

Sorry it took me a while to post this, it was a very busy period for me then came Christmas and the holidays but Here is the full assessment/ reply from POPLA


Decision - Successful
Assessor Name - xxxxxxx xxxx
Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) as the vehicle was parked in a No Parking area.

Assessor summary of your case
The appellant has provided documentation supporting his appeal and the issues he has raised. he lists the following grounds of appeal with a fair amount of detail. I have assessed each point made when reviewing this information. The appellant states that: • They are the keeper of the vehicle and therefore, not liable for the parking charge and the Notice to Keeper (NTK) was never served originally. • There is no evidence of landowner authority, in accordance with section 7.3 of the BPA code of practice. • The appellant explains that the signage was inadequately positioned, lit and were not prominent nor legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. • The operator has not shown that the individual who it is pursuing is in fact the driver, who was liable for the charge.

Assessor supporting rational for decision
The appellant has raised several grounds for appeal. However, my findings will focus on signage as this ground has persuaded me to allow the appeal. By issuing the appellant with a PCN, the operator has implied that the appellant has not complied with the terms and conditions of the car park in question. It is the duty of the operator to provide evidence to POPLA of the terms and conditions that the appellant did not comply with and evidence that the appellant did not indeed comply with these terms and conditions. I have to assess the appeal on the reason that the PCN was issued. The operator has issued the PCN, as the driver parked on the site without a valid permit or relevant authorisation however, the appellant has highlighted that the signage was not clear and compliant, in compliance of the BPA code of practice. The British Parking Association (BPA) Code of Practice, section 18.2 states, “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, it goes on to state in section 18.3 “Specific parking-terms signage tells drivers what your terms and conditions are, including your 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 their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. The operator has provided evidence of signage within the area stating that the site does not permit parking at any time however, the images are multiple shots of two areas that have signage positioned. I can also see from the photographic image of where the vehicle was parked that there was a sign positioned near the back however, I am unable to determine whether this sign is connected to the operator’s signage or what the stated terms are. Furthermore, the operator has not provided me with evidence of a site map to indicate whether sufficient signage is positioned across the site, or that the terms were clear and prominently displayed to the appellant. I would expect the operator to provide clear evidence of what the terms and conditions were outlined clearly and that prominent signage was provided on the site. Ultimately, the burden of proof lies with the operator to evidence that a parking contract was formed and that the motorist failed to comply with the terms and conditions of the contract. Based on the evidence provided, I am not satisfied that the parking signs were set out clearly and were compliant with the BPA code of practice. As such, I cannot establish that a contract was formed and therefore, I cannot determine if the appellant breached the terms and conditions of the site. As such, I cannot conclude if the PCN was issued correctly or not. I have not considered any other grounds for appeal, as they do not have any bearing on my decision. Accordingly, I must allow this appeal.

Fruitcake

Well done and thanks for posting the full result.

Would you mind also posting it in the PoPLA Decisions sticky thread so others can benefit from it?

Have you complained to your MP yet about this unregulated scam. The fact you have won adds weight to your complaint.

Coupon-mad

The operator has provided evidence of signage within the area stating that the site does not permit parking at any time however, the images are multiple shots of two areas that have signage positioned.

I can also see from the photographic image of where the vehicle was parked that there was a sign positioned near the back however, I am unable to determine whether this sign is connected to the operator’s signage or what the stated terms are.

Furthermore, the operator has not provided me with evidence of a site map to indicate whether sufficient signage is positioned across the site, or that the terms were clear and prominently displayed to the appellant.

Very good!