We’d like to remind Forumites to please avoid political debate on the Forum.
This is to keep it a safe and useful space for MoneySaving discussions. Threads that are – or become – political in nature may be removed in line with the Forum’s rules. Thank you for your understanding.
IMPORTANT: Please make sure your posts do not contain any personally identifiable information (both your own and that of others). When uploading images, please take care that you have redacted all personal information including number plates, reference numbers and QR codes (which may reveal vehicle information when scanned).
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!
The Forum now has a brand new text editor, adding a bunch of handy features to use when creating posts. Read more in our how-to guide
POPLA Appeal help please - Anthea ANPR (Lidl Car Park)
jason0224
Posts: 10 Forumite
Hi There,
I received a £90 'fine' from the above for parking in the Lidl car park 1 hour over their one hour limit. There is an Easy Gym next to the Lidl store for which allows 3 hours free parking. There are no clear signs to distinguish between the two car parks and as result, is not clear where the car park for the gym starts and ends, and the same for the Lidl car park.
I was using that particular gym for the first time on just a pay as you go basis. I do not have a receipt but I can take a screen shot of the transaction from my online bank account statement (although the money actually came out the day after the date of the fine).
I wrote to Athena using the template first appeal letter and my appeal was rejected on 26/09/14. I've been given an Appeal Verification code and after checking on the Cowboy Website the code is valid until 24th October.
I found this letter that had been done by someone else as a POPLA appeal. Could someone please have a look over it to see if this will suffice, or if any other information needs to be added or taken out?
I am also unsure how to add or word the fact that I paid for the gym which allows 3 hours free parking and that there's not clear information on where that car park starts or ends. Should I even include this at all?
Thank you in anticipation of any help. Here is the letter...
POPLA Code:
Vehicle Reg:
PPC: Athena ANPR
PCN Ref:
Alleged Contravention Date:
Date of PCN:
On... of ... 2014 I was sent an invoice from Athena ANPR as registered keeper of the above vehicle requiring payment of a charge of £90 for an alleged parking contravention.
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 would have been provided on-site and a VAT invoice supplied. This is not the case here.
This is a free (for 60 minutes) car park and there is no mechanism to pay for additional parking. The signage indicates that parking for over 60 minutes attracts a £90 charge and, as no limits are specified, this could equally apply for an additional 10 minutes, 10 weeks or indeed 10 years!
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 (insert location) 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 required them to present evidence on whether 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. They have failed to do so, although 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.
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.
Yours faithfully ,
I received a £90 'fine' from the above for parking in the Lidl car park 1 hour over their one hour limit. There is an Easy Gym next to the Lidl store for which allows 3 hours free parking. There are no clear signs to distinguish between the two car parks and as result, is not clear where the car park for the gym starts and ends, and the same for the Lidl car park.
I was using that particular gym for the first time on just a pay as you go basis. I do not have a receipt but I can take a screen shot of the transaction from my online bank account statement (although the money actually came out the day after the date of the fine).
I wrote to Athena using the template first appeal letter and my appeal was rejected on 26/09/14. I've been given an Appeal Verification code and after checking on the Cowboy Website the code is valid until 24th October.
I found this letter that had been done by someone else as a POPLA appeal. Could someone please have a look over it to see if this will suffice, or if any other information needs to be added or taken out?
I am also unsure how to add or word the fact that I paid for the gym which allows 3 hours free parking and that there's not clear information on where that car park starts or ends. Should I even include this at all?
Thank you in anticipation of any help. Here is the letter...
POPLA Code:
Vehicle Reg:
PPC: Athena ANPR
PCN Ref:
Alleged Contravention Date:
Date of PCN:
On... of ... 2014 I was sent an invoice from Athena ANPR as registered keeper of the above vehicle requiring payment of a charge of £90 for an alleged parking contravention.
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 would have been provided on-site and a VAT invoice supplied. This is not the case here.
This is a free (for 60 minutes) car park and there is no mechanism to pay for additional parking. The signage indicates that parking for over 60 minutes attracts a £90 charge and, as no limits are specified, this could equally apply for an additional 10 minutes, 10 weeks or indeed 10 years!
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 (insert location) 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 required them to present evidence on whether 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. They have failed to do so, although 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.
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.
Yours faithfully ,
0
Comments
-
That's a bit of a mixed version of a POPLA appeal - the first point is good but the rest falls short, a little. There is no such thing as a 'Notice to Appellant', that was an error ages ago made by ONE poster and it has carried on for months and months with people copying I wrongly. It's a 'Notice to Keeper'.
You also need an 'unclear signage forming no contract' paragraph (probably instead of point 4) to include the fact that there are no clear signs to distinguish between the two car parks.
Also this part in point 1(a) could add more, as shown:
The Lidl section of this car park is apparently a free (for 60 minutes) car park and there is no mechanism to pay for additional parking. However, there is within the same site, a '3 hour free' car park for Easy Gym, right next to the Lidl store and the driver was using the gym for the first time and relied upon the 3 hours allowed. The signage only indicates that parking for over 60 minutes attracts a £90 charge, which cannot be applicable to Gym users in the same site.
See the examples of 'How to win at POPLA' in post #3 of the Newbies thread and add an 'unclear signage' paragraph and any other improvements & show us your next draft.
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 -
Hi Coupon-Mad,
Thanks a lot for your help. Here is my second draft with your suggested alterations. Could you please take a look and let me know if there is anything else I need to add or take out to ensure that it will be successful.
Thanks Very Much...
POPLA Code:
Vehicle Reg:
PPC: Athena ANPR
PCN Ref:
Alleged Contravention Date:
Date of PCN:
Dear POPLA
On ... of ... 2014 I was sent an invoice from Athena ANPR as registered keeper of the above vehicle requiring payment of a charge of £90 for an alleged parking contravention.
I would like to appeal this notice on the following grounds:
1a) - Charge not a contractually agreed sum
1b) - Charge not a genuine pre-estimate of loss
2) - No Creditor identified on the Notice to Keeper
3) - No authority to levy charges
4) – Unclear Signage
5) – Cameras
1a) This charge is not a contractually agreed sum. It is a disguised breach
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.
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 would have been provided on-site and a VAT invoice supplied. This is not the case here.
The Lidl section of this car park (which is where the alleged parking incident was supposed to have taken place) is apparently a free (for 60 minutes) car park and there is no mechanism to pay for additional parking. However, there is within the same site, a '3 hour free' car park for Easy Gym, right next to the Lidl store. The driver was using the gym for the first time and relied upon the 3 hours allowed. The signage only indicates that parking for over 60 minutes attracts a £90 charge, which cannot be applicable to Gym users in the same site. In addition, no limits are specified, this could equally apply for an additional 10 minutes, 10 weeks or indeed 10 years!
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 Croydon is to deter breach.
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.
1b) Not a genuine pre estimate of loss.
Their sign states the charge is for not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because 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. In Addition, the Lidl Croydon store (which is where the alleged parking incident is said to have taken place) was closed. So, if I did indeed exceed a free parking duration (which is denied) there was no loss of potential income in a free car park.
This 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. Where 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 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.
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 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 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) Unclear Signage
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. As previously stated, there is within the same site 2 car parks, a 1 hour free car park for Lidl, and a 3 hour free car park for Easy Gym. The driver did not see any sign to distinguish between the 2 car parks. In addition, it was extremely dark at the time of parking. The sign also breaches the BPA Code Of Practice, Appendix B, which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times. Therefore, there was no consideration/acceptance and no contract agreed between the parties and 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 required them to present evidence on whether 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. They have failed to do so, although 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.
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.
Yours faithfully,0 -
This needs 'Appellant' changed to 'Keeper':
And get rid of this after every paragraph - this was a fairly old template you used and that is unneeded at the end all the time (if at all):''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...''
And remove your full name from this - never put your details on an open forum.''I therefore respectfully request that my appeal is upheld and the charge dismissed.''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
This discussion has been closed.
Confirm your email address to Create Threads and Reply
Categories
- All Categories
- 354.5K Banking & Borrowing
- 254.4K Reduce Debt & Boost Income
- 455.4K Spending & Discounts
- 247.4K Work, Benefits & Business
- 604.2K Mortgages, Homes & Bills
- 178.5K Life & Family
- 261.7K Travel & Transport
- 1.5M Hobbies & Leisure
- 16.1K Discuss & Feedback
- 37.7K Read-Only Boards