IMPORTANT REMINDER: Please make sure your posts do not contain any personally identifiable information. If you are uploading images, please take extra care that you have redacted all personal information.

Athena ANPR exceeded free parking duration (90 mins) at a Lidl

edited 18 May 2014 at 2:34PM in Parking Tickets, Fines & Parking
34 replies 5.7K views
Ignatius1Ignatius1 Forumite
91 Posts
Good afternoon everyone

I'm new to this forum.

I visited church on Good Friday and was forced to use a Lidl car park as there were no spaces to park kerbside on the street. A CIVIL PCN / NTK was received through the post about 7 to 10 days later. I had overstayed the free parking duration of 90 minutes by 12 minutes and 9 seconds. I appealed with mitigating circumstances half expecting the appeal to be accepted and the charge dismissed. They replied with a generic letter stating "There is photographic evidence to show that you failed to comply with the parking terms."

Please use this broken link (dropbox.com /s/ir4tvtuy11xftn4/PCN%3B Athena--Lidl . pdf) to view redacted copies of all correspondence received from Athena ANPR Ltd, my first stage appeal to them and two images of the signage all in the form of a single PDF.

I have drafted a POPLA appeal with several grounds. Here it is;

**START**

On xx April 2014 I was sent an invoice from Athena ANPR Ltd requesting payment for a charge of £90 for an alleged parking contravention of exceeding a free parking duration of 90 minutes by 12 minutes and 9 seconds.

I am appealing this notice on the following grounds:

- Charge is not a genuine pre-estimate of loss
- No Creditor identified on the Notice to Appellant
- Lack of proprietary interest in the land and no authority to levy charges
- Signage and lack of contract
- ANPR camera accuracy
- Operator’s further breach of the BPA’s Code of Practice

Charge is not a genuine pre-estimate of loss

This charge is not a contractually agreed sum. It is a disguised breach and is not a genuine pre-estimate of loss.

a) This charge is not a contractually agreed sum – it is a disguised breach;

If this charge was a contractually agreed fee the sign would have been worded to offer various durations of parking at various costs. In addition a payment mechanism would have been provided on-site and a VAT invoice supplied. This is not the case here.

This is a free (for 90 minutes) car park and there is no mechanism to pay for additional parking. The signage indicates that parking for over 90 minutes attracts a £90 charge and, as no limits are specified, this could equally apply for an eternity.

The same sum is also sought for returning to the car park within 2 hours, something clearly disallowed by the wording “No return within 2 hours … “, which is immediately followed by “or a charge of £90 will apply”. In other words “don’t do this or else” which shows the charges are actually for failing to comply, which equals a deterrent for breach.

Despite what the sign attempts to say, it is not an offer to park for a fee and it is clear that the true and predominant purpose of the alleged 'parking operation' at Lidl ******************* is to deter breach and, in the absence of evidence that this charge is a genuine pre estimate of loss, it is an unrecoverable penalty.

In a recent ruling at Luton Crown Court 2014 (Civil Enforcement Ltd v McCafferty) the judge ruled that sum quoted on the sign was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.

It would normally be for the owner to claim for loss which is nothing as there are no fees for using this car park and there was no damage or obstruction caused (nor is any being alleged). It is unfair to attempt to make a party pay excessively for an event that would normally be 'breach of contract'.

I require Athena ANPR Ltd to provide a VAT invoice, details of the daily rates of parking and proof that this chargeable regime at this location is registered for business rates.

b) Charge is not a genuine pre-estimate of loss;

If the sum is sought as damages for breach of contract then under established contract law it must be shown to be a genuine pre estimate of loss arising from the breach.

The car park is free and there was no damage or obstruction caused (nor is any being alleged). I submit that on a free car park there can be no loss arising from any alleged overstay.

The demand for £90 is punitive, unreasonable, exceeds an appropriate amount, has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty. Furthermore, it exceeds the BPA’s own Code of Practice.

The BPA Code of Practice states:

19.5 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.

19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.

The appellant requires Athena ANPR 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 may not be included in these pre-estimates of loss.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.

The fourth paragraph of the appeal rejection letter states, “There is photographic evidence to show that you failed to comply with the parking terms.” This demonstrates that the charge is actually in respect of a breach of contract terms hence their charge must represent a genuine pre-estimate of loss.

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

No Creditor identified on the Notice to Appellant

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 Athena ANPR, there is no specific identification of the Creditor who may, in law, be Athena ANPR 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.

Lack of proprietary interest in the land and no authority to levy charges

Athena ANPR Ltd are not the landowner and do not have title or assigned interest in this land which means that they have no legal standing to allege trespass or loss, if that is the basis of their charge. Nor do they have the legal status at that site, which would give them any right to offer parking spaces on a contractual basis as they are not the landowner and I have seen no evidence that they are lawfully entitled to demand money from a driver or keeper.

Athena ANPR Ltd is a member of the British Parking Association, and the BPA Code of Practice states, in Section 7.1, that the operator must have written authority from the landowner to recover parking charges, including pursuing through court action in their own name.

I therefore put Athena ANPR Ltd to strict proof that they have the necessary authorisation at the location in question i.e. a relevant contemporaneous, non-redacted contract with the landowner (not an individual lessee or managing agent as they are another third party) to pursue these charges in the Courts in their own name as creditor. In the event that witness statements are submitted instead of the landowner contract itself, I require that this should be disregarded as insufficient to prove full BPA compliance.

Even if a basic contract is produced and mentions Parking Charge Notices, I submit that such a contract is a commercial matter between the Operator and the owner/occupier and the lack of ownership or assignment of title or interest in the land reduces any such contract to one that exists simply on an agency basis between Athena ANPR Ltd and the owner/occupier. Such a contract would contain nothing that Athena ANPR Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer as it does not create any contractual relationship between Athena ANPR Ltd and motorists who used the land. A parking operator has no standing to bring the claim in their own name.

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

Signage and lack of contract

The BPA’s Code of Practice states:

18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.

18.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle.


There was no contract between the driver and Athena ANPR. The driver did not see any contractual information on any signs when entering 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. Even if there was a contract, which has yet to be proven, then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.

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

ANPR camera accuracy

Athena ANPR are obliged to ensure that their ANPR equipment is maintained in good working order as described in paragraph 21.3 of the British Parking Association’s Approved Operator Scheme Code of Practice.

I require Athena ANPR Ltd 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 the vehicle entering and exiting at specific times.

It is vital that Athena ANPR 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 concluded that the evidence from 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.

I also challenge The Operator to show that DPA registration (data collecting CCTV) is also compliant with legal and BPA requirements and demand that they demonstrate adherence.

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

Operator’s further breach of the BPA’s Code of Practice

In addition, the initial appeal to Athena ANPR Ltd was sent via email on ** April 2014. Their appeal rejection letter [dated ** May 2014] (please see appendices) was received on 08 May 2014. However, the date identifier of the POPLA Appeal Verification Code is significantly different from the date on the appeal rejection letter. The appeal code was generated and issued on ** May 2014, two days before the letter’s date. This therefore must mean that the POPLA appeal deadline is 29 May 2014, which is only 21 days after the letter was received. Receipt of the letter aside, the point here is that Athena ANPR Ltd has seemingly breached and failed to comply with the BPA’s Code of Practice in disallowing the full 28 days for the appellant to appeal.

Appendix E of the BPA’s Code of Practice illustrates by way of a flowchart the correct sequence or procedure of movements or actions that should be undertaken for recovery of unpaid parking charge notices and appeals from the very initial pursuit of the keeper to whatever the outcome may be. One of the processes following the “Appeal rejected?” decision on the flowchart is described as “Driver/keeper can use POPLA Appeal process within 28 DAYS”. Note how the text “28 DAYS” is emboldened in the BPA’s Code of Practice.

This feels like a deliberate attempt for Athena ANPR Ltd to mislead over the true expiry date, effectively reducing the appeal window. It, seemingly, is not an isolated incident either. Complaints were submitted to the BPA, POPLA and DVLA via email. This email, along with each organisations’ responses, can be found in the appendices.

**END**

I think I will move "Lack of proprietary interest in the land and no authority to levy charges" [and may even rename it to "The Operator lacks the legal capacity to enforce / issue PCNs at this car park"] up to point #1 followed by "Signage and lack of contract" then "ANPR camera accuracy", "Charge is not a genuine pre-estimate of loss", "No creditor identified on the Notice to Appellant", then finally "Operator's further breach of the BPA's Code of Practice".

As soon as I do receive some communications from the three organisations that I complained to about the date identifier of the appeal code being generated two days before the date printed on the appeal rejection letter, I will post on here and will include as evidence in my POPLA appeal. I sent the email on Friday when I discovered this apparent breach so expect to receive some sort of acknowledgement(s) this coming week.

Any thoughts, advice etc will be much appreciated. Thank you.
«134

Replies

  • Coupon-madCoupon-mad
    105.6K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    ✭✭✭✭✭✭
    Hiya, I post as SRM on pepipoo and as you know, my main point to you was to suggest that the 'no authority/landowner contract' paragraph was made stronger and moved to point #1 because that's what Athena usually lose at POPLA on (not on 'no GPEOL' because of the way they word some of their signs).
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Ignatius1Ignatius1 Forumite
    91 Posts
    Hi

    Thank you, Coupon-mad / SRM.

    I will be altering the appeal in due course moving that ground of appeal to #1 and will expand on the third paragraph (as you have recommended). I'll just wait until Monday, 26 May '14 for any responses from the BPA, POPLA and DVLA regarding the appeal code complaint before I submit to POPLA.

    Have a nice day everyone.
  • MothballsWalletMothballsWallet Forumite
    15.8K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    ✭✭✭✭✭
    Don't leave it too late to submit the appeal to POPLA though!

    You can post your revised version once you've made those changes for more advice and, once some of the more experienced folks on here say it's okay, send it in ASAP - the appeal code complaint can come after as you've got more time with that, if you see what I mean, as the POPLA code's got a time limit built into it.
  • Ignatius1Ignatius1 Forumite
    91 Posts
    I've received a reply from a POPLA Liaison Officer about that complaint;

    **START**

    Dear ************,



    Thank you for your e-mail.



    BPA – 05048.



    To date, the POPLA code you have been provided with is valid and you will be able to use this Code to submit your appeal to POPLA. You do have 28 days to appeal to POPLA and therefore you still have time to submit the appeal. I would suggest you do this if you do wish to contest the matter further.



    I will be contacting the operator in regards to this to ensure this does not happen again. Thank you for bringing this matter to my attention.



    Kind regards

    POPLA Liaison Officer

    British Parking Association

    **END**

    I've recently made the modifications to my POPLA appeal by moving appeal ground, "Lack of proprietary interest in the land and no authority to levy charges" to #1 in the list, expanding on the bit about the piece of paper that Athena have been known to produce, and have also added a paragraph;

    POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory supervision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued.;

    to the "No Creditor identified on the Notice to Keeper" appeal ground.

    I think the appeal is almost good to go to POPLA. I'm just going to hang fire for two or three days to see whether or not the BPA and/or the DVLA get back to me re. the complaint.
  • Bantex_2Bantex_2 Forumite
    3.3K Posts
    As a christian, do you think it is morally OK to use Lidls property which they have to pay to buy and maintain, to park your car on whilst you go to church?
  • Ignatius1Ignatius1 Forumite
    91 Posts
    Bantex wrote: »
    As a christian, do you think it is morally OK to use Lidls property which they have to pay to buy and maintain, to park your car on whilst you go to church?

    Well, I wouldn't have used the car park had there been a space on the surrounding streets. I realise that the car park is intended for patrons of Lidl's.

    FYI, I'm Roman Catholic.
  • nobbysn*tsnobbysn*ts Forumite
    1.2K Posts
    Not the op's fault. "I visited church on Good Friday and was forced to use a Lidl car park" He was forced to do it.
  • nobbysn*tsnobbysn*ts Forumite
    1.2K Posts
    Ignatius1 wrote: »
    Well, I wouldn't have used the car park had there been a space on the surrounding streets. I realise that the car park is intended for patrons of Lidl's.

    FYI, I'm Roman Catholic.

    Not a Christian then?
  • Ignatius1Ignatius1 Forumite
    91 Posts
    nobbysn*ts wrote: »
    Not the op's fault. "I visited church on Good Friday and was forced to use a Lidl car park" He was forced to do it.

    The signs don't strictly state that the car park is for Lidl customers only and there was no harm in my car being parked in the park.
  • Ignatius1Ignatius1 Forumite
    91 Posts
    nobbysn*ts wrote: »
    Not a Christian then?

    I don't think that we need to discuss religion in this thread, let alone this forum.
This discussion has been closed.
Latest MSE News and Guides