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    • pathris
    • By pathris 19th Nov 17, 11:01 AM
    • 10Posts
    • 6Thanks
    pathris
    Gemini Parking Solutions - Help with appeal
    • #1
    • 19th Nov 17, 11:01 AM
    Gemini Parking Solutions - Help with appeal 19th Nov 17 at 11:01 AM
    Hello
    I need help with formulating an appeal to POPLA.

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

    My appeal was based on the below:

    1. Inadequate Signage. No signage currently displayed in the location or within sight where the car was parked at the time, please see pictures attached. Gemini has provided photos of the signage which is not within the sight of where the vehicle was parked (the signage shown at the photos are at the very back of the driver and he/she would not be looking at this direction in order to enter the premises and will be walking away from it), hence relying on a signage to form a contract which is located at around 25 meters away from where the car was parked. I, therefore, content that there is no evidence that the driver saw the sign at all and thus no contract can be formed.
    2. No Notice to Keeper. Gemini has failed to serve a Notice to Keeper, which is fundamental document when the Operator does not know who the driver was.
    3. Lack of legal standing: Gemini Parking Solutions is not the landowner and in this case, I should see a copy of the contract detailing the restrictions, charges, the date and the terms of business, definition of your status as agents or contractors and your assigned rights. Such details were necessary for me to make an informed decision. A site agreement or witness statement is !!!8220;not a valid evidence!!!8221; as per POPLA rules.

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

    A Parking Charge Notice (PCN) was issued to vehicle registration xxxxx on the 09/10/2017 at the location GLL Mile End Leisure Centre, 190 Burdett Road, Mile End, London, E3 4HL for the contravention !!!8220;No Ticket!!!8221;.

    There are a number of clearly displayed signs at the entrance and throughout the location advising on the site regulations and parking restrictions in place. It stipulates within the signage that the car park is Pay & Display and all vehicles must have a valid ticket or permit displayed clearly within the windscreen.

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

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

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

    The above location is private property and is managed by Gemini Parking Solutions London Ltd on behalf of the land owner. Motorist has parked within restricted area which is owned by our client. When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is therefore the motorist!!!8217;s responsibility to ensure that he or she abides by the conditions of parking at all times.

    As displayed within the signage by staying at the location, the motorist accepted all of the prevailing terms and conditions of the parking contract including the charges for the breach of that contract. These signs offer the parking contract to the motorist and sets out the terms and conditions of the parking and upon which by remaining at the location, the motorist has agreed to be bound by these terms and conditions clearly show the amount which will become payable if the terms and conditions are breached.
    Gemini Parking Solutions fully complies with the guidelines set by that of the British Parking Association who are the regulating body for the parking industry


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

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

    Your advice will be appreciated.
    Pathris[IMG]file:///C:/Users/petyahristova/Downloads/Mile%20End%20Leisure%20Centre.pdf[/IMG]
    Last edited by pathris; 21-11-2017 at 9:59 PM.
Page 2
    • pathris
    • By pathris 2nd Jan 18, 8:16 PM
    • 10 Posts
    • 6 Thanks
    pathris
    Thank you for the encouragement Coupon-mad. Of course, I am going to fight it and complain.
    Below is what I am planning to send. Any more details, pointers will be appreciated.

    Thank you for all your time you lovely, helpful folks!

    FORMAL COMPLAINT Procedural Impropriety
    REF: XXXXXXXXXXXX

    Dear Mr Gallagher,

    I recently appealed a Parking Charge Notice through the POPLA service, for which a misapplication of PoFA 2012 rules has resulted in an inappropriate refusal of my appeal.
    On 21st of December 2017, I received a decision by the assessor Jessica Lawton that my appeal was rejected. I would like to bring to your attention the following paragraph as per her response:
    !!!8220;As it stands, the operator has not issued a Notice to Keeper due to an ongoing appeal for the PCN issued. I, therefore, cannot make a judgement or conclusion on it the Notice to Keeper is correct. However, having considered the requirements of PoFA 2012 (Schedule 4, Paragraph 7(2)), I am satisfied that the Notice to Driver issued on 9 October 2017 does meet these requirements outlined within this and that the operator is entitled to seek payment for the PCN from the driver!!!8221;.

    There was never any admissions as to who was driving and no assumptions can be drawn. As no Notice to Keeper has been served, (the deadline has now passed) there can be no possibility of the keeper being held liable for the charge either.
    Furthermore, the decision made by your assessor is not complaint with Schedule 4 of the Protection of Freedoms Act 2012 which states:
    Conditions that must be met for purposes of paragraph 4 (Right to claim unpaid parking charges from keeper of vehicle):
    5 (1)The first condition is that the creditor!!!8212;
    (a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but
    (b)is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.
    (2)Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper.
    6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)!!!8212;
    (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or
    (b)has given a notice to keeper in accordance with paragraph 9.
    (2)If a notice to driver has been given, any subsequent notice to keeper must be given in accordance with paragraph 8.
    7(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.


    This is a matter of utmost importance to both myself and the integrity of POPLA as an Ombudsman Service. I expect a thorough investigation into this case and I would like you to look at it in details to ensure that the correct decision is given.
    Yours Sincerely,

    PS: Does anyone know Mr Gallagher's email address, or shall I just send this to the general complaints@popla.co.uk?
    Last edited by pathris; 02-01-2018 at 9:11 PM.
    • Coupon-mad
    • By Coupon-mad 4th Jan 18, 12:56 AM
    • 58,576 Posts
    • 72,081 Thanks
    Coupon-mad
    Yes and yes, use that email address. Your case exposes a serious training need for young 'JL'.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • pathris
    • By pathris 11th Jan 18, 10:24 PM
    • 10 Posts
    • 6 Thanks
    pathris
    Hello All,
    I received the response from POPLA and my appeal has been successful :-)
    Thank you to everyone who took the time to comment and advise, especially to Coupon-mad - Thank you.
    Please see below and I hope is useful for someone else.

    Assessor supporting rational for decision
    ....Upon review of the evidence, I am not satisfied that the driver has been identified sufficiently. In order to transfer liability from the driver, to the registered keeper of the vehicle, the strict provisions laid out in PoFA 2012 must be adhered to: !!!8220;The notice must be given by !!!8211; (a) Handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (b) Sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period. (5) The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given!!!8221;. Upon review of the evidence, a Notice to Driver was issued on 9 October, 2017. As the operator did not issue a Notice to Keeper it has not sufficiently transferred liability to the Keeper and the PCN has been issued incorrectly. I note the appellant has raised other grounds of appeal within their submission. However, as I have allowed for one reason given, I do not feel that the additional grounds require any further consideration. Accordingly, I must allow the appeal.
    Last edited by pathris; 11-01-2018 at 10:28 PM.
    • Coupon-mad
    • By Coupon-mad 12th Jan 18, 12:49 AM
    • 58,576 Posts
    • 72,081 Thanks
    Coupon-mad
    Yay, we got a POPLA appeal reviewed and changed! A first I think! Astonishing.

    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Umkomaas
    • By Umkomaas 12th Jan 18, 8:39 AM
    • 18,035 Posts
    • 28,573 Thanks
    Umkomaas
    As the operator did not issue a Notice to Keeper it has not sufficiently transferred liability to the Keeper and the PCN has been issued incorrectly.
    Actually, POPLA, it has transferred absolutely no liability whatsoever!

    As the operator did not issue a Notice to Keeper it has not sufficiently transferred liability to the Keeper and the PCN has been issued incorrectly.
    How does that work? The PCN may well have been issued !!!8216;correctly!!!8217;, the fact that they didn't issue a NtK doesn!!!8217;t mean the PCN was issued incorrectly.

    POPLA seem to be in a mixed up mess!

    Was there no explanation, or apology to you for originally screwing this up?

    Well done on getting this sorted.
    Last edited by Umkomaas; 12-01-2018 at 8:42 AM.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • nosferatu1001
    • By nosferatu1001 12th Jan 18, 8:45 AM
    • 2,765 Posts
    • 3,443 Thanks
    nosferatu1001
    Its because POPLA has this bind that they seem to only "consider" whether a PCN was issued "correctly", but then MUST overturn tickets which *may* have been issued correctly for which the NtK is either missing or deficient.

    I mentioend this on another group, as its backards. They need to consider whether the *pesona appealing* has *any liability in law*, which is a different question.
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