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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
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Replies

  • nobbysn*tsnobbysn*ts Forumite
    1.2K Posts
    Ignatius1 wrote: »
    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.

    That's not really important, you got the charge for overstaying, it wasn't for not being a customer.
  • nobbysn*tsnobbysn*ts Forumite
    1.2K Posts
    Ignatius1 wrote: »
    I don't think that we need to discuss religion in this thread, let alone this forum.

    I was a bit puzzled why you brought it up in a parking forum?
  • Ignatius1Ignatius1 Forumite
    91 Posts
    nobbysn*ts wrote: »
    That's not really important, you got the charge for overstaying, it wasn't for not being a customer.

    Thank you for reminding me! :j
  • Bantex_2Bantex_2 Forumite
    3.3K Posts
    Right or wrong the attitude sort of explains why companies like lidl use parking companies though.
  • Bantex_2Bantex_2 Forumite
    3.3K 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.
    Makes you wonder how the church would feel if lidl customers all started using the churches carpark as the lidl one was full and they wanted to go shopping.
  • nobbysn*tsnobbysn*ts Forumite
    1.2K Posts
    Bantex wrote: »
    Makes you wonder how the church would feel if lidl customers all started using the churches carpark as the lidl one was full and they wanted to go shopping.

    Last one on here I remember got a PPC in!
  • Bantex_2Bantex_2 Forumite
    3.3K Posts
    nobbysn*ts wrote: »
    Last one on here I remember got a PPC in!
    Bolt of lightening could be effective.
  • Ignatius1Ignatius1 Forumite
    91 Posts
    I think the appeal is almost ready to be submitted some time later today.

    I took a couple of photographs of the signage and am including a ground of appeal relating to this signage. Should I upload these photographs as evidence in relation to the appeal or not bother and just wait for Athena to respond probably stating that their signs are such a size etc etc?

    Here's the revised appeal;

    **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:

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

    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 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. Athena ANPR Ltd are known to produce a photocopied 'agreement' piece of paper from 2008 which does not even identify the car park site, let alone whether the signatory has ever seen the extant contract there (2008 being well before the changes following PoFA2012) nor even who the signatory is, and indeed, whether they are still currently employed by Lidl UK. Clearly this will not be sufficient proof of any current, site-specific authorisation and nor does it provide any evidence that this particular alleged 'contravention' in this car park even results in a £90 charge at all.

    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.

    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 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.

    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.


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

    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.

    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**
  • Coupon-madCoupon-mad
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    Part of the Furniture 10,000 Posts Name Dropper Photogenic
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    Should I upload these photographs as evidence in relation to the appeal or not bother and just wait for Athena to respond probably stating that their signs are such a size etc etc?
    I wouldn't bother to upload evidence, wait and see what rubbish Athena protest with - and have a laugh before you ultimately win!
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  • edited 24 May 2014 at 1:59AM
    Ignatius1Ignatius1 Forumite
    91 Posts
    edited 24 May 2014 at 1:59AM
    Coupon-mad wrote: »
    I wouldn't bother to upload evidence, wait and see what rubbish Athena protest with - and have a laugh before you ultimately win!

    Thank you once again, CM.

    I've modified the appeal a little and will be submitting to POPLA over the weekend.

    At the same time I'm really tempted to email Lidl's CEO, Ronny Gottschlich, but am quite reluctant to as I feel that Lidl could discover from Athena that I used the car park to visit church potentially jeopardising the appeal.

    I could be honest in the email and state that I was going to church and as there were no spaces to park in the surrounding streets I decided to put my car in the park.

    If only I had some way of proving that I visited the Lidl to make a purchase. I have thought of simply writing to the MD to complain about the way Athena have handled this whilst stating that my car was parked while I visited church before going into the Lidl to buy something with cash (no longer have receipt story).

    I want a quick and easy resolution to this (MD cancelling the ticket) but at the same time I want to make representations to POPLA for the experience factor.
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