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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
13

Replies

  • Bantex_2Bantex_2 Forumite
    3.3K Posts
    Ignatius1 wrote: »
    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.
    Churchgoer consider possibly being honest, sure I am missing something here.
  • Ignatius1Ignatius1 Forumite
    91 Posts
    Bantex wrote: »
    Churchgoer consider possibly being honest, sure I am missing something here.

    White lies, Bantex, white lies.

    I mean either I write that I visited church and Lidl within the 112 minutes and 9 seconds but don't have a receipt or simply write that I used the car park to visit the church and as my vehicular motionary carriage was having issues starting this unfortunately culminated in my exiting of the car park by those 729 seconds.

    I would also complain about the way Athena have been sending threatening letters etc.

    I'm tempted to mail the MD in the hope of putting an end to this but also want to ride the appeal out purely for the experience.
  • Ignatius1Ignatius1 Forumite
    91 Posts
    Here's what I think is now the final draft.

    Do you think it should now be sent?

    **START**

    On 08 May 2014 I received 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 the registered keeper and this is my appeal:

    - 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
    - The 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, no contract with the Landowner and no authority to levy charges

    Athena ANPR Ltd has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the Courts in their own right.

    The British Parking Association’s Code of Practice paragraphs 7.1 and 7.2 dictate some of the contract wording. I put Athena ANPR Ltd to strict proof of the contract terms with the actual landowner (not a lessee or agent). Athena have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the Courts in their own name nor standing to form contracts with drivers themselves. No evidence has been supplied lawfully showing that Athena ANPR Ltd is entitled to pursue these charges in their own right.

    I require Athena ANPR Ltd to provide a full copy of the contemporaneous, signed and dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

    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 constitutes in a £90 charge at all.

    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.

    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.

    The 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) This 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 Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. When there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver’s alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

    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 fails to meet the standards set out in the BPA’s 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.


    Further still, The Department of Transport’s ‘Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges’ publication states under Chapter 16. Frequently Asked Questions, “Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.”

    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.

    The appellant requires Athena ANPR to provide a detailed breakdown of how the amount of the £90 charge was calculated, whether as an actual or pre-estimated loss. 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.

    ANPR camera accuracy

    Athena ANPR are obliged to ensure that their ANPR equipment is kept 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.

    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 uploaded evidence) 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 the appellant over the true expiry date effectively reducing the appeal window in its hope that an appeal to POPLA would potentially not be received in good time. Complaints were submitted to the BPA, POPLA and DVLA via email. This email, along with the only response received to date [from POPLA], can be found contained within this appeal’s uploaded evidence.

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

    **END**

    Thank-you for reading.
  • Coupon-madCoupon-mad
    105.3K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    ✭✭✭✭✭✭
    Yep, looking good. I am just thinking to add 'retailer' here:


    not merely an 'agreement' with a non-landholder managing agent or retailer - otherwise there is no authority.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • Ignatius1Ignatius1 Forumite
    91 Posts
    Coupon-mad wrote: »
    Yep, looking good. I am just thinking to add 'retailer' here:


    not merely an 'agreement' with a non-landholder managing agent or retailer - otherwise there is no authority.

    Added. I think I should get this darn appeal submitted once and for all now.
  • Coupon-madCoupon-mad
    105.3K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    ✭✭✭✭✭✭
    Go for it and then relax and enjoy the long weekend!
    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
    About the premature generation of the POPLA appeal code, and after also mailing Steve Clark, Head of Operational Services at the BPA, I've recently received a reply from him and the DOOVLA.
    [FONT=&quot]"Dear **************
    [/FONT]

    [FONT=&quot] [/FONT]
    [FONT=&quot]Thanks for your e-mail the contents of which are noted.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]You are correct in your assertion that Athena have sent you a letter dated *** May but with a POPLA code which in essence ‘sets the clock running’ for your appeal to POPLA of *** May.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]As to the reason this has happened, by copy I am asking one of my Investigation Officers to make contact with Athena for an explanation – she will revert in due course.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]This investigation will be handled separately from any appeal that you make to POPLA and, if you haven’t already done so and you wish to appeal, you should submit your case to POPLA this week.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Kind regards[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Steve Clark"[/FONT]

    I replied stating that this isn't an isolated incident. He responded with;[FONT=&quot][/FONT]

    [FONT=&quot][/FONT]
    [FONT=&quot]"Dear ***********
    [/FONT]

    [FONT=&quot] [/FONT]
    [FONT=&quot]I have spoken to my colleague Gemma this morning who has informed me that she dealt with this enquiry for you on the 20th May and the pertinent content of her reply that day is as follows;[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]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. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]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.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]I am advised that we have corresponded with Athena and have been assured that this was a one-off administrative mistake. We have accepted this from the operator and will be taking no further action.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The case has now been closed.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Kind regards[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Steve Clark[/FONT]
    [FONT=&quot]Head of Operational Services"[/FONT]

    [FONT=&quot][/FONT]
    [FONT=&quot]I did also send a mail [/FONT][FONT=&quot][email protected] on 16/05 then [/FONT][FONT=&quot][email protected] on 25/05 and recently received a reply from a 'Vehicle Data Customer Assurance and Compliance Practitioner' from the DOOVLA;[/FONT]
    [FONT=&quot][/FONT]

    "Dear ***********,

    Thank you for your enquiry concerning Athena ANPR Ltd, in which you have raised a number of issues.

    The British Parking Association (BPA) have copied me into their response provided to you concerning your complaint that the POPLA code was issued incorrectly. In which two points were addressed; the first being that the POPLA code was still valid on the date you raised the issue with both the BPA and the DVLA and would be for a while after. The second being that they advised that they are working with Athena ANPR Ltd to ensure that they issue the POPLA code correctly and happy that no further action was warranted in this instance.

    The DVLA feels the actions taken in this case were appropriate and do not warrant any further intervention by the DVLA.

    With respect to your comments concerning the BPA not taking any visible action to resolve your case and furthermore that they are not regulating the parking industry correctly.

    I believe that a response was provided to you by Gemma at the BPA on the 20th May 2014, when your email was sent on the 16th May 2014, where she provided details of actions BPA took. I do not feel that there is any evidence they did not take any visible actions and a response being made with four days would not reasonably warrant a subsequent complaint.

    The DVLA works closely with the BPA to ensure that their members comply with the Code of Practice that is published on the BPA website. Whenever it is brought to the DVLAs attention that there have been clear and repeated breaches of the Accredited Trade Associations Code of Practice, we would expect the BPA to investigate and take the appropriate actions which could result in the parking company being suspended from the Approved Operator Scheme and consequently loss of access to DVLA data. The DVLA is informed of the actions and results from all cases we bring to their attention.

    Unfortunately, you have not provided any evidence to support your claim that the BPA is not regulating the industry correctly, to allow me fully investigate your complaint, please forward full details and any supporting evidence.

    Sincerely

    [FONT=&quot]Brian Dodge[/FONT]
    [FONT=&quot][FONT=&quot]Vehicle Data Customer Assurance and Compliance Practitioner[/FONT]"[/FONT]
  • bod1467bod1467
    15.2K Posts
    ✭✭✭✭✭
    That's just it ... this scenario happens many times, with different PPCs, but there's no coordinated collation of such evidence. DVLA (and BPA) know this and so can easily do the soft-shoe-shuffle on this and refer complainants to Arkell v Pressdram.

    Logic would deduce that DVLA should be logging and compiling complaints by subject-matter, and so should already know that BPA are failing in their duty. But that would kill the cash-cow of registered keeper details requests (£2.50 a pop) which is yielding DVLA £6m+ a year.
  • Ignatius1Ignatius1 Forumite
    91 Posts
    My appeal is allowed.

    Reference **********
    always quote in any communication with POPLA

    ********* (Appellant)
    -v-
    Athena ANPR Limited (Operator)

    The Operator issued parking charge notice number ********** arising out of a presence on private land, of a vehicle with registration mark *******.

    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

    It is the Appellant’s case that the parking charge notice was issued incorrectly.

    The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.

    Accordingly I have no option but to allow the appeal.

    *******************
    Assessor

    CASE CLOSED.

    Do move into completed cases if deemed appropriate.
  • bod1467bod1467
    15.2K Posts
    ✭✭✭✭✭
    So Athena are following Parking Eye and taking the PSDSU route. :)
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