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

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  • ColliesCarerColliesCarer Forumite
    1.6K Posts
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    Given you had already received your cancellation a rebuttal of their evidence pack wasn't really needed and it's good to see the appeal was upheld anyway even without a rebuttal.

    However, for completeness and for the benefit of others dealing with a charge from Athena/Lidl who may refer to your thread, here is the response to their evidence pack which I had drafted and which I would've suggested you send had you needed to.
    Dear Popla Assessor,

    Re: POPLA appeal code xxxxxxxxxx

    I would like to highlight a number of issues with the recent ‘Evidence’ issued by Athena ANPR as follows:

    1/ Re: My appeal point that Athena ANPR have no authority to levy charges.

    I contest the evidence they have supplied in rebuttal of this point. The letter Athena hold on file allegedly confirms the existence of a contract and gives them ‘authority’ to issue parking charges on property owned by Lidl. The letter, dated 1/08/2008 (almost 6 years earlier than the charge was issued), is not witnessed and does not confirm anything about the contract. Nor is it clear if it is even from the landowner at all as it was signed by a 'Monica Minnini' who is not a named signatory for the business (opencorporates.com/companies/gb/FC017929[) and who, therefore, has no right to issue Athena with any form of authority to issue charges. It is also not clear whether this person signed on the date of the letter or when this evidence was put together for the purpose of this appeal.

    The letter does not show that Athena ANPR Ltd can form contracts with drivers at all and merely states Athena has the authority to ‘manage parking arrangements at some of our properties’. It does not specifically state they have authority to issue charges (however irrelevant given Ms Mininni’s non director status within the business) at the specific location concerned for this charge, nor does it show whether Athena has any right as creditor to pursue parking charges in the courts in their own name if necessary.

    I believe this letter should be disregarded as it does not provide satisfactory evidence to confirm Athena ANPR Ltd have the right to issue charges on behalf of the landowner at the location concerned and pursue payment of these charges through the courts in their own name. They have created a supposed contractual barrier in an attempt to hide their unlawful claim. The reality is, the landowner is the only person who can authorise this type of activity and I see nothing in the evidence supplied to prove they have the right to act as agent to the landowner.

    2/ The basis of the charge

    In my appeal I refuted that this charge is a contractually agreed sum and asserted that it is in fact a disguised breach of contract which should therefore be deemed to be an unenforceable penalty unless it could be shown to be a genuine pre estimate of loss.

    I believe that the following wording contained in their rejection letter to me:
    "There are sufficient number of signs in the car park, which clearly state that if you fail to comply with the terms you will be liable to pay a parking charge" further supports my assertion that the charges are in fact for breach.

    If they wished to rebut my challenge I required Athena ANPR Ltd to provide POPLA with a VAT invoice, details of the various durations and tariffs for parking and proof that this chargeable regime at this location is registered for business rates, all of which would be necessary if the sum was in fact a contractual consideration as they claim. They have provided none of these and I therefore believe my challenge that this is not a contractually agreed sum, but is a disguised breach of contract, should be upheld.

    As the charge must therefore be considered to be a disguised breach of contract it must be a genuine pre estimate of loss to be enforceable but Athena ANPR Ltd have provided no evidence of this. I therefore contend the charge is neither a contractually agreed sum nor a genuine pre estimate of loss but is in fact an unenforceable penalty and consequently I believe my appeal should be upheld.

    3/ Reasonableness of the charge.

    Athena ANPR Ltd maintains that the charge of £90 is reasonable and is not excessive; however they provide no evidence for this assertion. A simple statement that they believe it to be so is not enough.

    They also state that the opportunity to pay a reduced charge of £45 further supports their belief that the charge is reasonable and is not excessive; however, I contend that a reduced charge for early payment further supports my assertion that the charge is not a contractual fee. It is not reasonable to offer the same amount of parking for two different amounts. To do so creates an unclear, uncertain term and hence the requirements for forming a contract (i.e. meeting of minds, agreement, and certainty of terms) have not have been met. Had a means to pay on site been made available, as should be the case for fees for parking, which fee would drivers be required to pay? Either the consideration for parking was £90 or it was £45 - it cannot be both, therefore I contend it was not a contractual sum but a deterrent. A reduced amount also shows that no consideration has been given to whether the charge is a genuine pre estimate of loss.

    I contend the charge of £90 (even the reduced amount of £45) is an excessive and unreasonable amount for any additional time which may or may not have been spent in the car park beyond the time that free parking is offered. The charge bears no relation to comparative Pay and Display parking charges and far exceeds any loss that may have been incurred by the landowner, which I assert was nothing in a free car park. For Athena to assert that any driver would knowingly agree to pay this sum for a small amount of additional parking is perverse, which leads me to my next point – No contract formed with driver.

    4/ Another appeal point was my assertion that no contract was formed with the driver.

    I would like to draw your attention to a number of inconsistencies and contradictions contained in their evidence regarding the signs and terms and conditions at the location concerned. They do not appear to know and have not accurately stated what terms and conditions applied at the specific location. They give the number of signs present as 20 at one point but elsewhere say it is 16. Similarly, they state 90 minutes was the free time allowed at the location, then contradict themselves when they state elsewhere it was 60 minutes.

    These inaccuracies call in to question whether the evidence Athena have supplied regarding signage and terms actually relates to the specific location concerned at all and I believe that the evidence supplied in rebuttal of my challenge is completely unreliable and should be disregarded. I therefore consider they have failed to show that the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were satisfied and request this point is upheld.


    5/ ANPR cameras.

    In my appeal I challenged Athena ANPR to prove their compliance with the requirements of the BPA Code of Practice part 21. 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.

    In order to prove compliance with paragraph 21.3 of the BPA CoP, Athena would have needed to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronized with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. They have failed to provide this proof.

    They have also not provided evidence of the manual quality check that must be carried out in connection with an alleged breach, as required by the BPA Ltd CoP 21.2. Merely stating that “each individual event is also verified by two separate members of staff prior to any charges being raised” and that “there were no issues as regards this event” is insufficient. I require Athena ANPR to provide evidence that this manual check was undertaken for my car and provide copies of all images of it that were captured throughout the total duration it was allegedly parked at the location in question. Athena also need to show evidence to rebut this point: I suggest that in the case of my car being in this car park it left before the end of the free time limit and returned a short time later, when, without parking, it picked up a passenger. I assert that dropping off and picking up is not parking.

    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 when the case was dismissed as the judge said the camera evidence from the Operator was 'fundamentally flawed' and the operator could not rebut the point.

    I assert that there is no common "time synchronization system" between the remote server, which processes the vehicle images, and the camera which takes them. Images are transmitted to the server from the cameras using WIFI. This introduces a delay, so "live" is not really "live”. Hence there is no proof that the time stamp added by the server is actually the time the image was taken. So 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. I contend that this ANPR "evidence" from Athena in this car park is as unreliable as the ParkingEye system and I put Athena to strict proof to the contrary.


    I respectfully request that my appeal is upheld and the charge is dismissed.

    Yours
  • Dee140157Dee140157 Forumite
    2.9K Posts
    Part of the Furniture Combo Breaker Mortgage-free Glee!
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    Just out of curiosity I looked on the Ashford Borough Council website about who controls the car parks as I am local to this one so have read this with interest as it is a car park I sometimes used
    On the ABC website it lists the management incorrectly

    P12 New Street (Farm Foods) Car Park - Managed by Euro Car Parks - T.020 7563 3000
    P13 New Street (Lidl) Car Park - Managed by Lidl - T.0870 444 1234

    P12 is managed by parking eye, from which I received my one and only PCN and P12 is managed by Athena.

    I am thinking of contacting them to a) moan that their site is incorrect and b) moan about the behaviour of these 2 PPCs .

    Any suggestions for what I could include in the moan?
    Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.
  • uk_steveuk_steve Forumite
    375 Posts
    Intresting read looks like Lidi are taking notice for blue badge holders seen this on another forum

    "Hi

    I wanted to share this with the board from the postman today got a Civil Parking Charge Notice via Athena ANPR LTD for overstaying my welcome at Lidi Folkestone Kent on Saturday just gone by 19 minutes and 45 seconds, I'm a blue badge holder and have disabled tax disc and my blue badge was clearly displayed and if it's any use I just dug out the til receipt from lidi also from the bin.
    There is free parking for 1hour it's saying but in reality I don't shop at lidi much I only did on Saturday because they had a Graat deal on microwave rice for 24p Weekend only so got 35 packets and then got another load from another Lidi store on Sunday but I know on that day it was only 20 minute stay so not a issue of complaint there. anyway today went back to Lidi and looked round and where I was parked and the entrance to store there is nothing in my opinion that it's clear signage apart from if you look closely as you first go into the entrance and around the rest of the car park which the car was not parked, there is 3 disabled bays and another bay in the same run I think I was in either the disabled bay or the other bay however I can't recall the total stay was 1hr 19mins 45 seconds

    I will update photos very soon


    Update
    been to store today and after speaking to the district manager said he will sort it out he was very helpful didn't care about the details because I was a blue badge holder it will get dealt with in person from him.Hopefully this will end well very soon and due to his professional approach with me I'm happy to use Lidi still as long as this is done swiftly via them

    I keep you posted once I know more"

    http://forums.pepipoo.com/index.php?showtopic=90908&st=0&gopid=968391&#entry968391
    Oh well we only live once ;-)
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