How to appeal to POPLA

[EATU]

On Tuesday last week, I took kids swimming, parked and paid and got a ticket to put in my car. However I stood beside my car talking to another parent holding the ticket in my hand. I didnt see a ticket office sneak in throw the back and start issuing a ticket to me. I walked to her and showed her the ticket in my hand but she said it was too late but she took a picture of the ticket in my hands and asked me to call Gemini the next day that it wont be a problem since she took the picture of my pay and display ticket in the same machine. She told me to tell them that the ticket fell off but I retrieved it after and showed to her.

I called the next day and when they didnt reply I sent the email below. They replied yesterday rejecting my appeal and asking me to appeal to POPLA if i wanted to. Now looking at the rejection letter from Gemini, the location of my car is wrong and is different from what is on the parking ticket!!! How to I appeal to POPLA? I need help and have never done this before and am panicing.... Did I admit too much in the email to them? I am attaching the ticket showing my purchase time as 17:35 and their parking ticket issued at 17:46 and also highlighting the different locations.

Hi,

Today I parked at St Georges Pools in Shadwell and purchased a ticket which I put on the dashboard as usual. I then stood in the car park a few centimetres from my car talking to another parent. Unknown to me my ticket must have dropped and I only realised this when I saw a ticket officer taking pictures of my car. I promptly ran to my car and showed her my ticket. She took a picture of the ticket and asked that I call tomorrow to get this sorted out.


I will call tomorrow morning to speak to someone in your office as advised. Please see attached scanned copy of the tickets ( even thought the officer says its not necessary as she already took a picture of my pay and display ticket)


Thank you for your co-operation.


Kind Regards,Scan.pdfScan 1.pdfScan 2.pdf

[mystery1]

Re: How to appeal to POPLA

Any chance you have, or can get pictures of the signage ?

M1

[EATU]

Re: How to appeal to POPLA

Any chance you have, or can get pictures of the signage ?

M1

Thanks for your help. I will go and get signage this evening. I presume it means the pay and display signs and information right?

[mystery1]

Re: How to appeal to POPLA

Correct as well as any signs at the entrance and near where you parked.

M1

[EATU]

Re: How to appeal to POPLA

Correct as well as any signs at the entrance and near where you parked.

M1

@ M1 Please see attachment. Thanks so much

[mystery1]

Re: How to appeal to POPLA

I'll write a popla appeal asap but am at work for 3 days now

Might get it done in between if they're kind to me.

M1

[EATU]

Re: How to appeal to POPLA

I'll write a popla appeal asap but am at work for 3 days now

Might get it done in between if they're kind to me.

M1

Many thanks!!! I will pray that they will be extremely kind to you

[EATU]

Re: How to appeal to POPLA

@ mystery1

I do not mean to rush you because I know you are extremely busy. I will be travelling out of the country on Monday for 2 weeks and will not have regular access to the internet. By Monday I will have about 7 days left to pay Gemini or appeal to POPLA. Would you by any chance be able to respond over the weekend? If it would be easier for you, could you please direct me to any other similar letter written before and maybe just tell me what to adapt? Is it important to mention the conflicting location details in the actual parking ticket and the appeal rejection letter from Gemini as that seems to invalidate their claim?

Hope they are treating you well at work

[mystery1]

Re: How to appeal to POPLA

Be done before you go :okay:

M1

[mystery1]

Re: How to appeal to POPLA

I wish to appeal this parking charge on the following grounds.


1. The charges are penalties and not a contractual charge, breach of contract or trespass. They are not a genuine pre estimate of loss either.


2. In order to form a contract the signs need to be clear so that they must be seen by an average person. They were not. There was no breach of contract.


3. Gemini do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.


4. Gemini have failed to adhere to the BPA code of practice.


5. Unreliable, unsynchronised and non-compliant ANPR system.


1.The charges are penalties.


The charges are represented as a failure to display which is disputed. The driver on the day had paid and was still in the vicinity of the vehicle and actually saw the warden and showed the ticket which had been bought and paid for. The signage may state that it must be displayed however it stands to reason that it cannot be displayed until the driver returns to the vehicle from the payment machine. According to the BPA code "If the parking charge that the driver is being asked to pay is for a act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"


£100 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for £1. Neither is it commercially justified because it would make no sense and in any event in was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. The £100 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £100 cannot be so as the figures quoted include business costs.


I require Gemini to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Gemini cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.


According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner allows free parking for shoppers and several hundred pounds were spent then there is no loss. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''


It was held in Parking Eye v Cargius that Beavis does not apply in a paid car park and that the charge is a penalty.




2. Unclear and non-compliant signage, forming no contract with drivers.


I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £85 in a carpark where they could have paid nothing. It was not a genuine attempt to contract for unlimited parking in return for £85.


As the PCN had no VAT content to it, it cannot be for a service. It must therefore be a penalty.




3.. Contract with landowner - no locus standi


Gemini do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Gemini 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 Gemini 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 Geminiand their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/0ce354ec669790b4b7d83754d8ca32e5?AccessKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1



I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.




It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."




The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."




In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.




4. Failure to adhere to the BPA code of practice.


The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.


The BPA Code of Practice states under appendix B, entrance signage:




“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”


For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not. Upon returning to the car park after receiving this unjustified 'charge notice' to check the alleged terms at a later date, I had to get out of my car to even read the larger font on the signs, and the smaller font was only readable when standing next to a sign. They were also very brightly coloured but too busy, confusing and unclear. Everything except the 'welcome' heading is too unreadable to be compliant (photo attached).




When with reference to the BCP Code of Practice, it actually states:


"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"


5. ANPR ACCURACY


This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted,calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.




So, in addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary.



M1

[EATU]

Re: How to appeal to POPLA

@mystery1

Thank you very much for staying up so late to write this. I really appreciate your help and your time.

The rejection letter from Gemini stated that my car was parked at Mile end leisure center but it was not. It was parked at shadwell and the ticket gave a code for what I believe is Shadwell car park code. Is this not a very strong point to invalidate the ticket? Should I add that " per Gemini, the said car was parked at Mile end, but the car has never been parked in Mile End and so shows that the ticket machines and operators for Gemini are incorrect and erroneous" what do you think/suggest?

Thanks

[mystery1]

Re: How to appeal to POPLA

You can but they'll lose anyway. If you do then don't say where it was parked just that it wasn't where the ticket says.

M1

[EATU]

Re: How to appeal to POPLA

@mystery1

I really appreciate you taking time out of your busy schedule to help me draft the letter and for getting back to me every time. I am really grateful and will keep you posted how it goes. It is really wonderful how you take your time to help at no cost and expecting nothing in return.

Best wishes,

[EATU]

Re: How to appeal to POPLA

@ Mystery1

Its me again .. I am trying to fill the POPLA form and dont know what to tick below. Can you please advice me on which ones are best to tick? Thanks.

why you are appealing – please tick

the vehicle was not improperlyparked
the parking charge (ticket)exceeded the appropriate amount
the vehicle was stolen
I am not liable for the parkingcharge

[mystery1]

Re: How to appeal to POPLA

Anything bar stolen will work. I'm still not sure if it lets you pick all 3. 4 is best then 2 then 1.

M1