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  • FIRST POST
    • Ruskhat
    • By Ruskhat 22nd Apr 19, 9:57 AM
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    Ruskhat
    Gemini parking charge POPLa appeal help
    • #1
    • 22nd Apr 19, 9:57 AM
    Gemini parking charge POPLa appeal help 22nd Apr 19 at 9:57 AM
    Please help with a good advice. I have 2 tickets from Gemini for parking in Gambado site and overstaying the 3 hour free parking by something line 31 and 40 min on a weekend (both Sat and Sun), while the child was playing in the soft play centre. Never knew that we must pay parking if staying over 3 hours and how to do it.
    My main concern is if I have any chance to argue these charges.
    I appealed to the company as a registered keeper not identifying the driver using the Newbies template. My appeals got refused and I need a good reason for appealing through POPLa.
    I emailed the CEO of Gambado to ask for help cancelling the tickets but he replied saying that they don't have a contract with Gemini and it is owned by the neighbouring football club the parking space of which they share with.
    The genuine reason is that we never noticed there was a sign on entrance saying there is ANPR camera used and terms. After the incident I investigated the area and realised there are signs with info and contract terms, which are in a very small font. The signs can be very difficult to see when other cars are parked they block the view of signs, and this parking area is very busy on weekends. I also read the BPA rules on parking signs and it seems that although Gemini managed to maintain the recommended size of the sign the important details are in a very small font and can't be legible from a parked car even if parked right in front of the sign. The entrance sign is very disproportionate to other signs that it is unnoticeable even if you drive through the gates very slowly. they put the entrance sign to the opposite side of the driver, which makes it even more difficult to notice.
    Please could anybody give a good advice if I have any chance to win the appeal and what points should I focus on.

    Thank you in advance
Page 1
    • Fruitcake
    • By Fruitcake 22nd Apr 19, 10:06 AM
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    Fruitcake
    • #2
    • 22nd Apr 19, 10:06 AM
    • #2
    • 22nd Apr 19, 10:06 AM
    Use all the template appeal points available to you from post 3 of the NEWBIES, including the very long inadequate signage point.

    These would normally include,
    Not the landowner
    No standing to bring charges
    Inadequate signage
    Non PoFA compliant NTK

    and anything else relevant.

    Get your own pics, and even video, of the entrance, site, and signage.
    Compare these with the BPA CoP and any provided to you by the scammers themselves. Then point out all flaws.

    Have you checked that the NTK is compliant with the PoFA 2012?

    Post your draft appeal here for checking before you submit it.

    Check with the council planning department to see if there is planning approval for the cameras and advertising consent for the sings. Not having the latter is a criminal offence.
    Last edited by Fruitcake; 22-04-2019 at 10:08 AM.
    I married my cousin. I had to...
    I don't have a sister.

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    • Coupon-mad
    • By Coupon-mad 22nd Apr 19, 2:34 PM
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    Coupon-mad
    • #3
    • 22nd Apr 19, 2:34 PM
    • #3
    • 22nd Apr 19, 2:34 PM
    Please could anybody give a good advice if I have any chance to win the appeal and what points should I focus on.
    You carefully appealed as keeper (not driver) yet you haven't even mentioned the NTK and whether it's a POFA one, even though the POFA is linked in the NEWBIES thread for everyone to check their NTKs against the wording.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • Ruskhat
    • By Ruskhat 22nd Apr 19, 6:41 PM
    • 7 Posts
    • 1 Thanks
    Ruskhat
    • #4
    • 22nd Apr 19, 6:41 PM
    • #4
    • 22nd Apr 19, 6:41 PM
    Apologies for the delay to respond.
    The NKT seems to be compliant with POFA, they sent the NKT by post within the required timeframe and gave sufficient time from the date of issue of NKT (different to the date of “Offence”). They are listed in the BPA member list. In the NKT they mention:
    If after 28 days they don’t receive full payment or driver details, under schedule 4 of the POFA 2012 they have right, subject to requirements of the act, to recover the parking charge amount from the keeper of vehicle.
    I checked the signs and measured the size of headings and how they use logo and mention all contract details. Everything seems to be in line with minimum requirements of the BPA code of practice, just big enough to comply for the headlines.
    • Ruskhat
    • By Ruskhat 22nd Apr 19, 6:49 PM
    • 7 Posts
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    Ruskhat
    • #5
    • 22nd Apr 19, 6:49 PM
    • #5
    • 22nd Apr 19, 6:49 PM
    Just to clarify the NKT was issued within 14 days of the day of “offence”
    • KeithP
    • By KeithP 22nd Apr 19, 7:45 PM
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    KeithP
    • #6
    • 22nd Apr 19, 7:45 PM
    • #6
    • 22nd Apr 19, 7:45 PM
    Just to clarify the NKT was issued within 14 days of the day of “offence”
    Originally posted by Ruskhat
    But it needs to be issued so that it arrives with the keeper within those 14 days.
    .
    • Ruskhat
    • By Ruskhat 22nd Apr 19, 8:13 PM
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    • 1 Thanks
    Ruskhat
    • #7
    • 22nd Apr 19, 8:13 PM
    • #7
    • 22nd Apr 19, 8:13 PM
    Thank you. I should have the envelope still, but it arrived by ordinary post, so the date will be only the date of franking. The NKTs were issued 5 and 8 days after the “offences” respectively. I think they allow 2 -3 days for delivery, if I’m not mistaken.
    The NKTs say there are 14 days from the date of issue for me to pay.
    • KeithP
    • By KeithP 22nd Apr 19, 8:14 PM
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    KeithP
    • #8
    • 22nd Apr 19, 8:14 PM
    • #8
    • 22nd Apr 19, 8:14 PM
    Thank you. I should have the envelope still, but it arrived by ordinary post, so the date will be only the date of franking. The NKTs were issued 5 and 8 days after the “offences” respectively. I think they allow 2 -3 days for delivery, if I’m not mistaken.
    The NKTs say there are 14 days from the date of issue for me to pay.
    Originally posted by Ruskhat
    What is the issue date of the NtK?
    What day of the week is that?
    It is deemed delivered two working days following the issue date.
    Last edited by KeithP; 22-04-2019 at 8:28 PM.
    .
    • Coupon-mad
    • By Coupon-mad 22nd Apr 19, 8:32 PM
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    Coupon-mad
    • #9
    • 22nd Apr 19, 8:32 PM
    • #9
    • 22nd Apr 19, 8:32 PM
    n the NKT they mention:
    If after 28 days they don’t receive full payment or driver details, under schedule 4 of the POFA 2012 they have right, subject to requirements of the act, to recover the parking charge amount from the keeper of vehicle.
    That 28 day period is NOT POFA-compliant, unless you have badly paraphrased it.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • Ruskhat
    • By Ruskhat 22nd Apr 19, 9:49 PM
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    Ruskhat
    the issue dates of the NTK are 7 Mar - which was Thursday, i did receive the letter on Sunday (10 Mar)
    the other one was from 11 Mar - Monday, which i believe came around Wedns/thursday 14 March. Unfortunately both are within the 14 days.

    But, there seems to be some hope, I have not paraphrased the wording from he NTK on POFA.
    It actually says: "If after 28 days we have not received full payment or driver details, under Schedule 4 of the Protections of Freedom Act 2012 we have the right, subject to requirements the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle."

    Thank you very much for pointing out.
    • Coupon-mad
    • By Coupon-mad 22nd Apr 19, 10:10 PM
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    Coupon-mad
    i did receive the letter on Sunday (10 Mar)
    Impossible.

    No post is received on a Sunday except courier deliveries and it won't have been that.

    But, there seems to be some hope, I have not paraphrased the wording from he NTK on POFA.
    It actually says: "If after 28 days we have not received full payment or driver details, under Schedule 4 of the Protections of Freedom Act 2012 we have the right, subject to requirements the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle."

    Thank you very much for pointing out.
    Yep, that's why I asked. I expected that non compliant wording!

    Gemini have never managed POFA wording, to my memory.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • Ruskhat
    • By Ruskhat 23rd Apr 19, 4:05 AM
    • 7 Posts
    • 1 Thanks
    Ruskhat
    thank you ever so much for your support and suggestions.I have put together the draft here, please could you comment whether it can be improved further. thank you very much in advance

    I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I was NOT the driver.
    I contend that I am not liable for this parking charge on the basis of the below points:


    1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and 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:-

    ’’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

    The applicable section here is 1(e) and (f) because the NTK states that “by parking on this private land, you agree to terms and conditions clearly displayed the signs on-site, and you are liable to pay a charge if you breach those conditions.”

    The NTK sent to myself as Registered Keeper states that my vehicle was parked in breach of the terms at xxxxxxxxxxx on Date/ time. Then it specifies that “ a PCN was issued to the vehicle, because it broke the following condition: ‘Failure to Pay for Duration of Stay’.
    Further, in the next para the NTK is addressed to me personally stating that: “by parking on this private land you agree to the term and conditions, and you are liable to pay a charge” because allegedly I breached the conditions.
    It appears that Gemini Parking Solutions suggested the knowledge of the driver who parked the vehicle on the site.
    The PCN also fails to identify the exact charges to arise and fails to describe the parking charges that they allege were unpaid. 7(2) states: ’’The notice must - (b) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose…and the other facts that made those charges payable…’’
    This NTK stated the reason is “Failure to Pay for Duration of Stay” and only the total duration of stay mentioned which doesn’t reflect the free 3 hour parking allowance offered to the customers of the Gambado soft play centre. 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.

    2) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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. 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 a
    ''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) 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

    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 headings and terms and conditions displayed in light yellow font against white 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.
    The entrance sign informing about the private parking area is disproportionally small comparing to the other large size signage of the premises. The entrance sign is very illegible and located on the opposite side to the driver’s side which makes it impossible to notice even if a driver passes through the entrance gates very slowly

    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.''

    ...and the same chart is reproduced here:

    ''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.


    4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    As Gemini Parking Solutions 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

    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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

    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
    • Coupon-mad
    • By Coupon-mad 23rd Apr 19, 11:25 PM
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    Coupon-mad
    Are you SURE it doesn't say ''after 29 days'' (you said 28)? I ask this because here is a pepipoo thread with an image of a Gemini postal PCN and it has 'after 29 days':

    http://forums.pepipoo.com/lofiversion/index.php/t124780.html

    Anyway once you've cleared that worry up:

    That's a good POPLA appeal but POPLA are pretty slow about understanding keeper liability and it's a bit hit and miss in terms of whether you get a clued-up assessor or a duff one (sorry to say, POPLA, but it is true).

    So make this clearer - for starters you completely missed explaining to POPLA how the 9(2)f warning was not met!:

    1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and 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 —

    (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;

    (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


    The applicable section here is 1(e) and (f) because the NTK states that “by parking on this private land, you agree to terms and conditions clearly displayed the signs on-site, and you are liable to pay a charge if you breach those conditions.”

    FAILURE TO COMPLY WITH 9(2)C OF SCHEDULE 4:
    The NTK sent to myself as Registered Keeper states that my vehicle was parked in breach of the terms at xxxxxxxxxxx on Date/ time, but it misstates the reason for the PCN, which is fatal insofar as the POFA is concerned.

    Then it specifies that “ a PCN was issued to the vehicle, because it broke the following condition: ‘Failure to Pay for Duration of Stay’.
    Further, in the next para the NTK is addressed to me personally stating that: “by parking on this private land you agree to the term and conditions, and you are liable to pay a charge” because allegedly I breached the conditions.
    It appears that Gemini Parking Solutions suggested the knowledge of the driver who parked the vehicle on the site.
    The PCN also fails to identify the exact charges to arise and fails to describe the parking charges that they allege were unpaid. 7(2) states: ’’The notice must - (b) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose…and the other facts that made those charges payable…’’


    This NTK stated the reason is ''Failure to Pay for Duration of Stay'' and only the total duration of stay mentioned which doesn’t reflect the free 3 hour parking allowance offered to the customers of the Gambado soft play centre.

    There was no relevant obligation to pay & display for the duration of this stay. The car park is free because the occupants of the car were using the Gambado play centre and this facility offers 3 hours free parking. Thus the NTK has the wrong facts and details and has failed to comply with 9(2)(c) in that it failed to accurately ''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''.

    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 28 days we have not received full payment or driver details, under Schedule 4 of the Protections of Freedom Act 2012 we have the right, subject to requirements the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle.''

    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.


    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 no less than three sections of the applicable law - namely 9(2)c, 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.
    Last edited by Coupon-mad; 23-04-2019 at 11:29 PM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • Ruskhat
    • By Ruskhat 17th May 19, 3:04 PM
    • 7 Posts
    • 1 Thanks
    Ruskhat
    Thank you ever so much, Coupon- Mad, for the suggestions and corrections. I apologise for not replying earlier, i had to submit my appeal as I had it written on the last day of messaging and waited for any response from POPLa. I have now received the operator response with evidence and need to submit my comments within 7 days. I hope it will be possible for me to use the corrected version of appeal as it is not changing my grounds which are:
    1) No keeper liability - PoFA non-compliant NTK due to failure to adhere to strict wording and guidelines set out in PoFA !!!8211; no mention of PoFA at all in NTK.
    2) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
    3) Grace Period: BPA Code of Practice!!!8211;non-compliance
    4) There are no easily visible entrance signs for the regular entry and 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
    5) No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    6) Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach
    7) No Evidence of Period Parked !!!8211; NtK does not meet PoFA2012 requirements
    8) Vehicle Images contained in PCN: BPA Code of Practice !!!8211;non-compliance
    9) The ANPR System is Neither Reliable nor Accurate
    10) The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for
    11) No Planning Permission from Tower Hamlet Borough Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

    Please could you help to reply intelligently with comments to raise chances my appeal is to be upheld?

    Gemini replied with some photo evidence which is absolutely out of date and some photos show date of Jan 2017 (parking tickets issued March 2019), some photos are even older than that as the signs show completely different terms of parking (2 free hours, instead of 3 hours as it is now).
    They enclosed an 'ANPR service management agreement" between Gemini and a 'Customer' (a name of an individual, not any of the companies based at the site), dated Dec 2015, it has commencement date 1 Feb 2016, with the Initial Term mentioned 36 months. There are a number of sections covered by black boxes and it is not clear what info is withheld. I feel that this document is irrelevant as it is out of date, and it doesn't prove anything.
    They also include a witness statement, some image of the map of the site with circles where they have the signs.
    I am preparing my response to address each point and reinforce my statement of appeal grounds and question all the evidence they supplied as invalid. Please could you help to make sure i include all relevant information?

    Below is the operator's comments:

    Gemini Parking Solutions London Ltd
    Operator Case Summary
    A Parking Charge Notice (PCN) was issued to vehicle registration XXXXXX on the XX/03/2019 at the location XXXXXXXXXXXX for the contravention “Failure To Pay For Duration Of Stay”.

    On the date of contravention, there was no payment allocated to the above vehicle registration. This indicates that 3 hours and 22 minutes of motorist`s stay remains unpaid for, hence the PCN was issued.
    All vehicles that are not authorised or not parked in accordance with the site terms and conditions for this development will be issued with a parking charge notice.

    I have noted appellant`s comments that the notice to keeper is not compliant with POFA 2012. The appellant has also stated that the insufficient signage. The appellant has also stated that the alleged there is there is no evidence of landowner authority. The appellant has questioned the signage and that ANPR is not advised to motorists.

    Although I understand the point the appellant is making, unfortunately, I am unable to take the mitigating circumstances into account. Please, see the site images of the location advising on terms and conditions of the site. Vehicles are permitted to park for 3 hours free of charge and vehicles parked in excess of the free parking period must pay for any additional duration of their stay. Please, see a screen shot of the permit list which lists all vehicles that are exempt from parking charges and vehicles that paid for their stay. There is no record of a payment for the above vehicle`s stay on the date of the incident. Unfortunately, I cannot consider appellant`s claim. Please see attached the signage to show that the ANPR cameras are in use.

    Any comments or assurances made by a third party do not overrule the parking restrictions in place in a car park which is governed by terms and conditions. In an ANPR managed site the camera enters the vehicle registration into a transaction system, when the driver enters a matching registration number the parking period is authorised. By not entering their details, the appellant has failed to validate their parking. They were not entitled to remain at the site, and by doing so they have breached the terms and conditions of parking.
    In regard’s to the PCN not being complaint with POFA. We can confirm that the PCN was issued within the correct time frames. Please see attached the PCN copy. As stated on the PCN, the vehicle was parked in contravention to the site terms and conditions and we invite the registered keeper to supply the driver details if they claim they were not the driver. If after 28 days we have not received full payment or driver details, under Schedule 4 of the Protections of Freedoms Act 2012 we have the right, subject to requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle. Therefore, I now invite the registered keeper, to supply the driver details.

    This is private land and we have to comply with the relevant sections of the British Parking Association’s Code of Practice. As outlined above, I am satisfied that it meets the minimum requirements set out in this Code of Practice. In this case, the driver entered onto private land freely and in full acceptance of the terms of parking clearly displayed. Terms and conditions are offered; and by remaining in the car park, these are accepted. It is the driver’s responsibility prior to leaving their vehicle in the car park, to ensure that the vehicle is parked in accordance with the terms and conditions of that site.
    I find that the signage at the site is sufficient enough to comply with the BPA Code of Practice and provides drivers with adequate notice of the terms and conditions. Please see attached the signage. I can confirm that the BPA entrance and the terms and conditions advise clearly that ANPR cameras are in place to make motorists aware of the regulations.
    In regards to the appellant’s comments of no landowner authority we can confirm that there is an agreement in place where Gemini can issue PCN’S as per client authorisation. Please see attached the agreement.

    If the appellant was in disagreement with the terms and conditions of the site or felt 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. The signage on site clearly states that vehicles must comply with the conditions of parking or a PCN will be issued. If the appellant believed they could not comply with the site terms and conditions of parking, then they should have left the site as free parking is not given on the site in question.
    As per BPA Code of Practice, “If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’ with you.” I am satisfied that there are a number of clearly displayed signs within close proximity of the vehicle and the driver was given the opportunity to read and understand the terms and conditions of the site and to decide whether they wish to park or leave. As the driver left the vehicle unattended, he/she accepted the terms and conditions, including those for breach of contract.
    On the date of contravention, the above vehicle remained parked within restricted area for 3 hours and 22 minutes. As the vehicle was not registered on the system to park, the vehicle was unauthorised to park in the area and I am satisfied that the PCN was issued correctly

    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’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.
    We find that, by failing to comply with the site regulations, the motorist became liable for a parking charge notice, in accordance with the terms of parking displayed and we are satisfied that this charge has been issued correctly. The motorist parked outside of the set terms and conditions of the site and as a result the appeal was unsuccessful as the representations did not make sufficient grounds.
    • KeithP
    • By KeithP 17th May 19, 3:54 PM
    • 14,668 Posts
    • 16,856 Thanks
    KeithP
    Your response to the operator's evidence is just that.

    It is not an opportunity to submit a revised appeal.

    You cannot introduce new evidence at this stage.

    There is good guidance in post #3 of the NEWBIES thread on how to respond to the operator's evidence.

    You have just 2000 characters in which to do so.
    .
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