Parking Charge NtK from Gemini Parking Solutions

[Usiaw]

Good evening,

A Parking Charge Notice to Keeper from Gemini Parking Solutions has been issued on 21/11/2017, received today.

Please could you review the (redacted) letter attached and advise on how to proceed?

The driver was attending the Urgent Care department of a nearby hospital but the letter is not addressed to the driver of the car at said time.

If you need any more information, let me know. I've had a look at some other posts but would appreciate your feedback here, particularly if it must go to POPLA as I've read the appeals to them are unique to each case.

Thank you,

EDIT: For what it's worth, there was no notice put on the car at the time.

[Kati]

Re: Parking Charge NtK from Gemini Parking Solutions

tagging [MENTION=5553]charitynjw[/MENTION] [MENTION=39331]ostell[/MENTION] xx

[charitynjw]

Re: Parking Charge NtK from Gemini Parking Solutions

Hi Usiaw

That Notice to Keeper is not compliant with Schedule 4 Protection of Freedoms Act 2012.

Do not ID whoever was driving at the relevant time.

[Usiaw]

Re: Parking Charge NtK from Gemini Parking Solutions

Thank you.

With the notice not being compliant, would the most appropriate next step be to follow the appeals process outlined in other threads or is there a different approach?

I know with some penalties/fines questioned on here, advice can be to ignore them but unsure how to tackle this one.

[charitynjw]

Re: Parking Charge NtK from Gemini Parking Solutions

They are not penalties or fines, of course.
Merely invoices for a perceived civil debt due to an alleged breach of terms.

In the first instance, go through the parking co's complaints/appeals procedure....as registered keeper. (Do not ID the driver)
State that the Notice to Keeper is not compliant with Schedule 4 of the Protection of Freedoms Act 2012, therefore liability cannot be transferred from the driver to the registered keeper.
Demand that they remove your details from their database & any further actions should be directed to the relevant driver.
As there is no legal obligation for you to reveal the driver's ID, you reserve the right not to do so.
If they disagree with this, please provide details of the POPLA appeal process.

Something along those lines.

[Usiaw]

Re: Parking Charge NtK from Gemini Parking Solutions

Thank you, charitynjw. An appeal will be filed online this weekend using the template mystery1 posted:

Dear Sirs,

I, as registered keeper, wish to invoke your appeals procedure. The driver was a genuine customer.

I note that the notice to keeper is fundamentally flawed when compared to the protection of freedoms act 2012 schedule 4 paragraph 9.

Should you reject my appeal, please supply a popla code.

Yours sincerely

If the driver was a genuine patient/visitor to the Urgent Care Clinic, should this be stated or would "customer" still suit?

Also, no signs were seen (the driver was focussed on their health concerns), but they cannot recall how clearly these were placed.

[Usiaw]

Re: Parking Charge NtK from Gemini Parking Solutions

I'm about to appeal, please could you critique the response below:

Dear Sirs,

I, as registered keeper, wish to invoke your appeals procedure. The driver was a genuine customer/patient at the Urgent Care Clinic requiring emergency care.

I note that the notice to keeper is fundamentally flawed when compared to Schedule 4 of the Protection of Freedoms Act 2012 Paragraph 9, therefore liability cannot be transferred from the driver to the registered keeper.

I demand that you remove my details from your database and any further actions should be directed to the relevant driver.

Should you reject my appeal, please supply a popla code.

Yours faithfully,

Anything to amend?

Thank you.

[charitynjw]

Re: Parking Charge NtK from Gemini Parking Solutions

Should you reject my appeal, please supply a POPLA code.

####

[Usiaw]

Re: Parking Charge NtK from Gemini Parking Solutions

They have responded and rejected the appeal, as expected. A POPLA code was provided. Please advise me on how next to proceed and what should go into the POPLA appeal for my particular case?

Any assistance is appreciated, as always. I can provide a suitably redacted copy of the response, if necessary?

[charitynjw]

Re: Parking Charge NtK from Gemini Parking Solutions

Could you post the redacted response?

[Usiaw]

Re: Parking Charge NtK from Gemini Parking Solutions

Attached is their response (redacted). Please let me know if you need any further information and how best to proceed with the POPLA appeal.

[charitynjw]

Re: Parking Charge NtK from Gemini Parking Solutions

From the Protection of Freedoms Act 2012, Schedule 4, s9

(2) The notice must—

(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

A quick Google will identify several other 'Chase Farms'

Appeal to POPLA as registered keeper & provide a selection of different Chase Farms.
Point to the mandatory section of PoFA (above).

[Usiaw]

Re: Parking Charge NtK from Gemini Parking Solutions

Thank you.

Although, their response to my initial appeal does specify the full address with post code - the first letter I received states only "Chase Farm", however. Does their clarification of the full address in their response to my appeal change how I approach POPLA?

I'll appeal as registered keeper, but is there anything else that I can mention to help my case? Anything the Gemini letter misses out?

Additionally, will a similar format to that posted here by mystery1 (advising an LB member who also received a letter from Gemini Parking Solutions for parking at a "Chase Farm", coincidentally) for my own POPLA appeal be suitable?

[ostell]

Re: Parking Charge NtK from Gemini Parking Solutions

The NTK has to state the location of parking, it didn't, 9 (2) (a). Also 9 (2) (f) is incorrect. Appeal to POPLA using a full blooded appeal throwing everything in. Signage, authority to operate, you want the unredacted contract, failure to conform to the requirements of POFA to hold the keeper liable. Stating that payment is required within 28 days does not adhere to the requirements. I couldn't find a statement of who the creditor is 9 (2) (h)

[Usiaw]

Re: Parking Charge NtK from Gemini Parking Solutions

Thank you. The appeal to POPLA will be as listed below.

I will remove "6. No contravention" as this doesn't apply to the driver's case. Will this be enough? There is no evidence to attach (was a visit to Urgent Care and no paperwork was provided to the driver).

I hope this will be sufficient. A bit concerned it will be rejected:

I, as registered keeper, wish to appeal as follows.

1. BPA code of practice

2. Signage

3. No standing

4. Keeper Liability

5. Advertising consent & illegality

6. No contravention.

7. No cancellation notice.




1. BPA code of practice.

The code of practice states

“4.1 Any organisation or person applying for BPA or AOS
membership must:
• sign a declaration agreeing to keep to the Code and
its principles
• agree to keep appropriate records to show full and
effective compliance with the Code requirements and
to allow a full review of these records by the BPA if
we make a reasonable request “

“7.1 If you do not own the land on which you are carrying
out parking management, you must have the written
authorisation of the landowner (or their appointed
agent). The written confirmation must be given before
you can start operating on the land in question and
give you the authority to carry out all the aspects of car
park management for the site that you are responsible
for. In particular, it must say that the landowner (or their
appointed agent) requires you to keep to the Code
of Practice and that you have the authority to pursue
outstanding parking charges.
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”


I require proof that the operator has such a contract that complies with the BPA code particularly, but not limited to, section 7.






2. Signage

The code of practice states

“18.2 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. See Appendix B for an example of an entrance sign and more information about their use. A standard form of entrance sign must be placed at the entrance to the parking area. There may be reasons why this is impractical, for example: • when there is no clearly defined car park entrance • when the car park is very small • at forecourts in front of shops and petrol filling stations • at parking areas where general parking is not permitted”

“If one of the following standard wordings applies to your parking area you should use it. If not, you may alter the wording to fit the
situation. Words in square brackets may be left out.
There must be at least one item from Group 1. But no more
than three items from Group 1 should appear before, and more
prominently than, text from Group 2. You must always mention
that terms and conditions apply and say where drivers can find
more details – this will usually be on the other notices in the
parking area.”

“Group 1 Pay and display [except/free for blue badge holders] [x minutes’/hour’s/hours’] free parking [for [business name] customers only] Pay on exit Pay [on foot/at machine] when leaving Parking for [business name] customers only Permit holders only”


There are also requirements to display prominently signs around the car park.


Aside from this any sign needs to be worded as to make an offer capable of consideration and acceptance. The signs forbid parking unless you have a permit. You cannot park for a fee without one. As the signs forbid parking UKPC v Masterson B6QZ4H3R
PCMUK v Bull et al B4GF26K6 would apply and no contract concluded and as such no penalty allowed.



3. Standing

The operator does not own nor have any interest or assignment of title of the land in question. As such, I do not believe that the operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow the operator to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.


In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.


So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between the operator and their client, which is true of any such business model.

As well as this they have no standing as they are required to adhere to the BPA code of practice which they demonstrably do not.



4. Keeper liability

Right to claim unpaid parking charges from keeper of vehicle



4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met ....


6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper 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.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the 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 (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable;
(c)inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is—
(i)specified in the notice; and
(ii)no later than the time specified under paragraph (f);
(d)inform the driver of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(e)identify the creditor and specify how and to whom payment may be made;
(f)specify the time when the notice is given and the date.
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices each specifying different parts of a single period of parking).
(4)The notice must be given—
(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and
(b)while the vehicle is stationary, by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.
(5)In sub-paragraph (2)(d) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the driver about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the driver to independent adjudication or arbitration.


8(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);
(d)if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is—
(i)specified in the notice to keeper, and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));



(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (if it is sent by post) or given (in any other case).
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4)The notice must be given by—
(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.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.


Without a compliant notice to driver and notice to keeper the keeper cannot be held responsible. The driver can only be held responsible if they admit who they were and thus without proof the appeal should be upheld.

5. Advertising consent & illegality.

The Claimant places reliance on its provision of signage at the site and upon the content
of that signage. The operator is put to proof that they had advertising consent and at the time the driver parked at Chase Farm Hospital a criminal offence was not being committed in
order to create a contract with the Defendant.

The signage at Chase Farm Hospital is classified in planning law as an advertisement. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements)
(England) Regulations 2007 (as amended) it is a criminal offence to display this kind of
advertisement in contravention of the Regulations. The penalty on conviction for the
offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each
day that the offence continues.

Without the correct permission Ex turpi causa non oritur actio applies and as such there can be no valid contract and as such no penalty due.


6. No contravention

The driver went inside to get a permit and returned to place a valid permit on display. The operator has not allowed any grace period at all as per the BPA code of practice paragraph 13.




7. No cancellation notices.

If the signage is capable of creating a contract, the signage does not comply with information requirements laid down in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014. This Act came in force after the Beavis case and as yet there is no case law available. However clause 13(1) of the act states that a contract is not binding on a consumer if the correct information is not provided.

The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.

The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.

The regulations define an on-premises contract as:
“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;
Thus a contract cannot be on-premises if it is a distance contract.

The regulations define a distance contract as:
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;




• This is clearly an organised service-provision scheme (for parking)
• The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
• There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

This is therefore a distance contract.

None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.

Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2. As per 13(1) the contract is therefore not binding.