POPLA Appeal help please - Athena ANPR (lidl car park)

Diva0804

there we go:

I would like to provide additional evidence, to support my appeal, following the email I received from Athena ANPR this morning.
Their email included the evidence they have submitted to you, and I would like to draw your attention to some points I feel were not properly addressed.

First of all, the letter of their contract with LIDL, was signed by 'Monica Minnini'. There is no reference of who this person is, or what their title could be. Furthermore, this letter is almost two years old, and it is not clear whether this person signed on the date stated in the letter, or when this evidence was put together for the purpose of this appeal.
Additionally, the letter is not witnessed, nor does it confirm anything about the contract, or if it is even from the landowner at all.
Therefore, Athena have failed to show they have complied with the BPA CoP in terms of specific contract with the landowner. That letter does not show whether Athena has any right as creditor to pursue parking charges in the courts if necessary, nor even does it show they can form contracts with drivers at all. It is merely their business agreement letter stating they can put signs up and act for Lidl as an agent.

The second point I would like to point out, is that in their evidence, Athena have failed to prove the reliability, maintenance and synchronisation of their ANPR, even though in my POPLA appeal I have already pointed out that it is fundamental to this case.
Athena are 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 Athena 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 Athena 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 last week 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 Athena to show evidence to rebut this point: I suggest that in the case of my car 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 Athena in this car park is just as unreliable as the ParkingEye system and I put Athena to strict proof to the contrary.


My third point was already covered in my appeal, but I would like to once again point out the lack of identification of the creditor, in the Notice To Keeper I initially received. This is a fundamental flaw of a Notice to Keeper as it breaches paragraph 9(2)(h) and Athena cannot rebut this point just by saying that in the opinion of themselves and their Trade Body it is 'totally compatible with POFA 2012' when even a cursory glance by myself, as a lay person with no background in parking law, was able to identify this important omission. ''The notice must—identify the creditor and specify how and to whom payment or notification to the creditor may be made;''

Finally, I would like to bring to your attention the fact that Athena are clearly using template responses to POPLA as they call me 'he' and ‘Mr’ throughout, when clearly from my name and the signature of my first email to them, I am a woman.

Coupon-mad

That will do; you can do no more than send that to Athena and to POPLA. Not sure if POPLA will let you submit more online - I think people have usually posted their extra evidence clearly marked as:

'urgent - additional evidence in response to Athena's evidence, re ongoing POPLA code xxxxxxxxxx'

So that POPLA don't just add it to the bottom of the pile.

Diva0804

Coupon-mad wrote: »

Not sure you can upload stuff now but you can try...if not then post it to both parties.

i tried to put in my verification code, in the upload evidence page, but it did not work and said the code was invalid. weird.

I've found this info on their appeal page: If additional evidence arrives shortly before the Assessor is due to consider your case, the matter may have to be adjourned. If it arrives after the decision is made, it will be too late to be considered.

And their contact page says below. So I guess I should send the additional evidence through their email ???? then I'll send the same thing to Athena, on the back of their email they sent me this morning

Please provide any reference number that you may have been issued when contacting us.
Please note that POPLA cannot give you legal advice about your case.
However, if you would like further information about the appeals procedure or the current status of your appeal you may contact us on:
Email: [EMAIL="enquiries@popla.org.uk"]enquiries@popla.org.uk[/EMAIL]

We would prefer to receive correspondence by email as this will allow us to respond to you promptly

Diva0804

Coupon-mad wrote: »

That will do; you can do no more than send that to Athena and to POPLA. Not sure if POPLA will let you submit more online - I think people have usually posted their extra evidence clearly marked as:

'urgent - additional evidence in response to Athena's evidence, re ongoing POPLA code xxxxxxxxxx'

So that POPLA don't just add it to the bottom of the pile.

Ok, i will do it this afternoon, but based on what i posted above, it's fine to do all of that by email, right?

bod1467

Email it if you can. But ALSO send a copy via snail mail (1st class, get free proof of posting from the PO). Make sure all pages are stapled together and your POPLA reference is noted on every sheet. (If there is more than one sheet).

Maybe mention in the email (and letter) that this same information has been sent by both email and letter.

Coupon-mad

Diva0804 wrote: »

Ok, i will do it this afternoon, but based on what i posted above, it's fine to do all of that by email, right?

Not sure, so as bod1467 says, I would also post a copy, seeing as you are posting Athena a copy anyway.

Diva0804

Thank you so much. I really appreciate your help !!!
I've sent the email to Popla.
I don't think I'll be able to pop in the post office before it closes today, so I'll aim to post it tomorrow to be able to get a proof from the counter.
I'll send the email to Athena only once all of that is done. I will certainly not waste a stamp on them !

Umkomaas

Make sure you have your verification code showing on every page you submit. And make sure your covering letter tells POPLA that this is to be added to and read in conjunction with your original appeal dated xxxx

Diva0804

Umkomaas wrote: »

Make sure you have your verification code showing on every page you submit. And make sure your covering letter tells POPLA that this is to be added to and read in conjunction with your original appeal dated xxxx

thanks for the tip. I've just amended the letter I'll send to them tomorrow

Diva0804

:beer::j:j:j:j :D:D
Won my appeal "!!!!!!!!
Super happy. Received the popla decision by email on the 23rd of december, so that was a good xmas gift !! I'd like to thank everyone who's giving me advice on the forum (especiall coupon-mad !!).
Happy new year !!

For those interested, this is what they wrote in their letter.

The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has
determined that the appeal be allowed.
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination
On xxxx 2013, the Operator observed the Appellant’s vehicle parked on the private land at Lidl car park via the Automatic Number Plate Recognition (ANPR) system. The Operator’s case is that vehicles are only permitted to park for a maximum duration of 1 hour and 30 minutes on the
land. As the Appellant parked for 28 minutes in excess of this time, theOperator submits that the parking charge notice was correctly issued.

The Appellant has made several representations to the Operator, namely that:
a) a ‘creditor’ was not identified on the notice to keeper;
b) the Operator does not have the authority to levy charges from the land owner;
c) driver did not see any signs relating to the terms of parking, and so a contract was not formed;
d) the amount of the charge does not amount to a genuine pre-estimate of loss; and
e) a lack of evidence to demonstrate that the ANPR camera’s were in correct working order.

The Operator submits that the Appellant is liable for the parking charge as the registered keeper of the vehicle in question, according to Schedule 4 of the Protection of Freedoms Act 2012.
Liability for parking charges lies primarily with the driver; however, the Protection of Freedoms Act 2012 provides that, in certain circumstances, the registered keeper of a vehicle may be held liable for parking charges incurred by the driver of the vehicle. In order for the Operator to be able to recover unpaid charges from the registered keeper, four conditions must be met.

The second of these conditions is that a notice to keeper in
accordance with paragraph 9 of the Schedule must be ‘given’.
The Appellant submits that the notice to keeper does not comply with Schedule 4 as the Operator has failed to identify itself as the creditor. Under paragraph 2(1) of the Act, “the creditor” means a person who is for the time being entitled to recover unpaid parking charges from the driver of the vehicle”. The Operator has produced a copy of the notice to keeper sent to the Appellant, and I note is does not specifically specify itself as a creditor.
However, it is apparent that Athena ANPR Ltd are the person entitled to recover the unpaid parking charge. The notice gives all the relevant details of the ‘period of parking’; was ‘given’ within 14 days of the date of the alleged contravention; and, invites the keeper to name the driver. The Appellant does not appear to have named the driver. Therefore, I am satisfied that the notice complies with all the relevant requirements of
paragraph 9 of the schedule.

With regards to the other submissions raised by the Appellant, the onus is on the Operator to produce some evidence or explanation as they deem suitable to refute the Appellant’s submissions.
The Appellant submits that the amount of the parking charge does not reflect the Operator’s loss, and so is not enforceable. The Operator has not addressed this submission.

It appears to be the Appellant’s case that the parking charge represents a sum for specified damages, in other words compensation agreed in advance. Accordingly, the charge must represent a genuine pre-estimate of the loss caused by the alleged breach. The Operator does not appear to dispute that the sum represents damages, and has not attempted to justify the charge as a genuine pre-estimate of loss. They simply state that they do not believe that that charge is not excessive, but have not elaborated in any sufficient detail their justification why.

Consequently, I have no evidence before me to refute the Appellant’s submission. Accordingly, I must allow the appeal.
I need not decide on any further issues.

Assessor