1st Appeal Rejected

Coupon-mad

You have missed 'unclear signage' and 'ANPR Ltd do not have a contract which puts them in breach with their client and owing money every time a driver parks (the signs lie about this and if it were true their business model would be even more laughable than it already is)'. Or words to that effect!

And stuff like this can be removed as it's not relevant, perfectly standard to not re-offer any stupid discount and the term 'early bird' discount is a standing joke!:

''(‘early bird discount to £50 if paid within 14 days- and if appealed this discount is waived )''

And it's a 'Notice to Keeper' not a Notice to Appellant.

I would copy much of the one in the thread linked by Umkomaas, as it won, or copy it verbatim!

Morning1

I've had another go. Again thanks for all your time and advice.

I as the registered keeper received a Notice To Keeper from ANPR Ltd. requiring payment of a charge of £100 for the alleged contravention of Parking. The issue date on the invoice is xxx.

As the registered keeper, I would like to appeal this notice on the following grounds:
1. The charge does not represent a genuine pre-estimate of losses and is punitive
2. No contract
3. No authority to levy charges
4. No Creditor identified on the Notice to Keeper
5. Flawed contract with landowner/Authority to issue PCN's
6. Unlawful Penalty Charge
7. Inadequate signage

1. The charge does not represent a genuine pre-estimate of losses and is punitive.
Even if there was a contract (which is denied), the following matters are relevant:

a. Punitive
The parking charge imposed is punitive and therefore void (i.e. unenforceable). The £100 parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. This would also apply to any mention of any costs incurred through debt recovery unless it followed a court order. £100 charge is
punitive, contravening the Unfair Contract Terms Act 1997 and is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

b. Unfair
The £100 parking charge imposed is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In
particular, Schedule 2 of those Regulations which gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule
‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’
Furthermore, Regulation 5(1) says:
‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer’
And 5(2), which states:
‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

c. The charge does not represent a genuine pre-estimate of losses
The BPA code of practice states: The BPA Code of Practice states:
“If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
If the parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable"

I require ANPR Ltd. to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, the maintenance of ANPR cameras, cost of membership of the BPA Ltd etc.) may not be included in this pre-estimate of loss.

The £100 charge is disproportionate to the loss incurred (of which there is none as this is a Residents Permit Holders car park which the vehicle has permit number xxxxxxx) by ANPR Ltd. I also consider the PCN to be a penalty because being a car park requiring a Residents Permit there can have been no loss arising from this incident. The car was parked on land outside the entrance to the car park, not blocking any entrances or prohibiting any permit holders utilising the car park. Thus not denying the land owner a loss in earning to the amount of £100. Neither can ANRP Ltd. lawfully include their operational day-to-day running costs in any “loss” claimed. I contend there can be no loss shown whatsoever. I would question that if a charge can be discounted by £50 by early payment that it £100 is unreasonable to begin with.

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

2. No contract
There was no contract between the driver and ANPR Ltd. The driver did not see any contractual information on any signs and had not entered the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied. If there was no contract, then at most the driver was guilty of a civil trespass (though this is neither admitted nor denied). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the car park there was in fact no loss at all. The driver has never received a complete version of the terms and conditions of that contract to which ANPR say the driver agreed to. I therefore respectfully request that my appeal is upheld and the charge dismissed.


3. No authority to levy charges
A parking management company will need to have the proper legal authorization to contract with the consumer on the landowner’s behalf and enforce for breach of contract. ANPR Ltd. must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location.
I believe there is no contract with the landowner/occupier that entitles ANPR Ltd. to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.
I put the ANPR Ltd. to strict proof to POPLA that they have the necessary legal authorization at this location and I demand that the ANPR Ltd produce to POPLA the contemporaneous and unredacted contract between the landowner and the ANPR Ltd. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between ANPR Ltd and the owner/occupier, containing nothing that ANPR Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

4. No Creditor identified on the Notice to Keeper
Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to ANPR Ltd there is no specific identification of the Creditor who may, in law, be ANPR Ltd. or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not. I therefore respectfully request that my appeal is upheld and the charge dismissed.

5. Flawed contract with landowner/Authority to issue PCN's - APNR Ltd. do not own this car park and are merely agents of the landowner or legal occupier. In their notice and rejection letters ANPR Ltd.have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I put ANPR Ltd. to strict proof to POPLA that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. I put ANPR Ltd. to produce to POPLA the contemporaneous and unredacted contract between the landowner and the ANPR Ltd.

If ANPR Ltd. produce a 'witness statement' in lieu of the contract then I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance.

The BPA code of practice contains the following:
7 Written authorisation of the landowner
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) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

6. Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a Residents Permit Holders car park, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

7. Inadequate signage
Following the receipt of the charge, I have personally visited the site in question, and the signage at this area especially at the entrance to the car park is inadequate for numerous reasons. The signage at entrance of the car park has no lighting and doesn't have a reflective background and, this makes it possible for drivers to enter the car park with out seeing the signs thus no contract can be formed between the driver and ANPR Ltd. These reasons make it possible for drivers to enter the car park without seeing the signage upon entering especially at night when my vehicle was parked, PCN was issued at 0319 hours.

Under Appendix B Entrance signs of the BPA Code of Practice it states 'Signs should be readable and understandable at all times ,including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.'

As a POPLA Assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

ANPR Ltd needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount ANPR Ltd is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

Umkomaas

It looks good to go, although I would try to build in this point (which Trev seems to make great play of) as suggested by Coupon above.

ANPR Ltd do not have a contract which puts them in breach with their client and owing money every time a driver parks

You must also as an essential do two other things:

1. You said in an earlier post that you have written confirmation (via email) that Chester Council does not have a contract with ANPR Ltd. you must build this point into your appeal AND attach a copy of that email.

2. In the same context you must write a robust complaint to the BPA and DVLA that ANPR Ltd are operating and issuing tickets without a contract (copy email as clear evidence). This is a highly sanctionable contravention (possibly has fraudulent undertones) and the BPA and DVLA must surely take strong and visible action. Addresses for both in NEWBIES thread.

Look forward to seeing results of both POPLA appeal and complaint letters. Keep us posted.

Morning1

Update and quick question.
I sent complaints to DVLA and BPA, as yet no response from DVLA but I have had an acknowledgement from BPA that they are looking into it.
I haven't received any communication from ANPR with POPLA code as yet. How long should I wait for this and what do I do if I don't receive anything from the thieving scum?

Redx

a PPC has 14 days to acknowledge and 35 days to respond

I would chase up the dvla as thay have a habit of telling joe public they see very few complaints and parking prankster was collating the evidence that proves they are incorrect

so keep up the pressure but dont assume ANPR will get back to you in a couple of weeks

Morning1

Firstly a huge thanks to all who give their time and advice on here.
My POPLA appeal was to be considered on or around 5 June but today I received this
The Operator has informed us that they have cancelled parking charge notice number XXXXXX, issued in respect of a vehicle with the registration mark XXXXXXX .
Your appeal has therefore been allowed by order of the Lead Adjudicator.
You are not liable for the parking charge and, where appropriate, any amounts already paid in respect of this parking charge notice will be refunded by the Operator.
The adjudicator was Richard Reeve

Stroma

Well done to you, another success story

Dee140157

Super news. Well done. Looks like they threw the towel in.

Umkomaas

Whilst this is good news for you personally (and well done), the bigger picture is one of a doubt that ANPR Ltd had any right to issue this PCN to you. Have you received any response yet from the BPA or the DVLA?

If you're up for this it would really help from a strategic point of view to have these replies chased up and posted here.

As an aside - is oor Trev having a fit of sensibleness in dropping this when clearly he is totally and utterly up a creek without a paddle?