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Athena ANPR Lidl
Ettenna
Posts: 639 Forumite
Hi, another Lidl/Athena ANPR thread!!
Received a PCN on 10/9/14 for an "offence" of overstaying by 22 minutes on 8/9/14. I sent them a letter declining their invitation to pay and invoking their appeals process. Of course I received a fairly standard reply with a POPLA code. Please would someone check my POPLA appeal. I think it's ok but I've probably missed something!!
POPLA Code:
Vehicle Reg:
PPC: Athena ANPR
PCN Ref:
Alleged Contravention Date & Time:
Date of PCN:
On xx date I was sent an invoice from Athena ANPR requiring payment of a charge of £90 for an alleged parking contravention as registered keeper of the above vehicle.
I would like to appeal this notice on the following grounds:
1 ) - Charge not a genuine pre-estimate of loss
2 ) - No Creditor identified on the Notice to Appellant
3 ) - No authority to levy charges
4 ) - Lack of contract
5 ) - Cameras
1) This charge is not a contractually agreed sum. It is a disguised breach and is not a genuine pre estimate of loss
Athena ANPR Ltd have not made clear the basis of their charge. Having visited the site, it appears they may be claiming the charge is a contractually agreed sum which I dispute. In my original appeal to Athena ANPR Ltd I requested that they clarify the basis of the charge. If alleging 'contractual fee' I requested they send me a VAT invoice by return and explain the daily rate of parking. However, in their rejection letter Athena ANPR Ltd failed to address this point and failed to provide the information or VAT invoice requested. Nor have they provided a calculation to show this is a genuine pre estimate of loss if alleging breach of contract.
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 been worded to offer various durations of parking at various costs. In addition a payment mechanism (such as a pay and display payment machine or parking attendant) 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. As no limits are specified, this could equally apply for an additional 10 minutes, 10 weeks or indeed 10 years. If there were the company have failed to mitigate their loss by not providing a way to pay the fee without resorting to a parking charge notice.
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 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.
In addition no VAT invoice has been provided and I have no evidence that this business operation on this car park has been registered for business rates.
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 (place x) 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.
In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.
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 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.
I therefore respectfully request that my appeal is upheld and the charge dismissed.
2) 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.
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 provision, 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.
3) No Legal Standing or Authority to Pursue Charges or Form Contracts with Drivers
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 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 doesn’t 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.
4) No contract
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. And 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.
5) Cameras
Athena ANPR are obliged to make sure their equipment is in working order and comply with the requirements of the BPA Code of Practice part 21. The appellant requirs them to present evidence showing that the cameras were checked and maintained recently in relation to the date of the alleged incident, to ensure the accuracy of any Athena ANPR images. The entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times.
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.
Thank you x
Received a PCN on 10/9/14 for an "offence" of overstaying by 22 minutes on 8/9/14. I sent them a letter declining their invitation to pay and invoking their appeals process. Of course I received a fairly standard reply with a POPLA code. Please would someone check my POPLA appeal. I think it's ok but I've probably missed something!!
POPLA Code:
Vehicle Reg:
PPC: Athena ANPR
PCN Ref:
Alleged Contravention Date & Time:
Date of PCN:
On xx date I was sent an invoice from Athena ANPR requiring payment of a charge of £90 for an alleged parking contravention as registered keeper of the above vehicle.
I would like to appeal this notice on the following grounds:
1 ) - Charge not a genuine pre-estimate of loss
2 ) - No Creditor identified on the Notice to Appellant
3 ) - No authority to levy charges
4 ) - Lack of contract
5 ) - Cameras
1) This charge is not a contractually agreed sum. It is a disguised breach and is not a genuine pre estimate of loss
Athena ANPR Ltd have not made clear the basis of their charge. Having visited the site, it appears they may be claiming the charge is a contractually agreed sum which I dispute. In my original appeal to Athena ANPR Ltd I requested that they clarify the basis of the charge. If alleging 'contractual fee' I requested they send me a VAT invoice by return and explain the daily rate of parking. However, in their rejection letter Athena ANPR Ltd failed to address this point and failed to provide the information or VAT invoice requested. Nor have they provided a calculation to show this is a genuine pre estimate of loss if alleging breach of contract.
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 been worded to offer various durations of parking at various costs. In addition a payment mechanism (such as a pay and display payment machine or parking attendant) 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. As no limits are specified, this could equally apply for an additional 10 minutes, 10 weeks or indeed 10 years. If there were the company have failed to mitigate their loss by not providing a way to pay the fee without resorting to a parking charge notice.
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 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.
In addition no VAT invoice has been provided and I have no evidence that this business operation on this car park has been registered for business rates.
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 (place x) 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.
In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.
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 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.
I therefore respectfully request that my appeal is upheld and the charge dismissed.
2) 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.
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 provision, 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.
3) No Legal Standing or Authority to Pursue Charges or Form Contracts with Drivers
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 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 doesn’t 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.
4) No contract
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. And 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.
5) Cameras
Athena ANPR are obliged to make sure their equipment is in working order and comply with the requirements of the BPA Code of Practice part 21. The appellant requirs them to present evidence showing that the cameras were checked and maintained recently in relation to the date of the alleged incident, to ensure the accuracy of any Athena ANPR images. The entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times.
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.
Thank you x
0
Comments
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Looks good to me. Send it off and await success.
The only thing I wonder you may have missed and that is complaining to the manager at Lidl!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.0 -
Sorry I should have said - I sent an email to the Ronnie last night
The store in question is currently closed for refurb. Should I put that in the letter? It doesn't seem to fit. 0 -
No don't say anything about the place/PCN/what happened. No need, POPLA don't consider such details.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
SUCCESS!!
Sent my email to Ronnie and got a reply saying they were contacting Athena to cancel the ticket! Got a reply from POPLAR who said that the ticket had been cancelled by Athena.0 -
That's good news!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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