Ticket from ANPR Ltd

bucko77

Hi All
I got a notice today from the above company for parking on private land without a permit. Not clear at all from the signage as I have been parking there for 4 years and the bloke must have been standing near me as I only parked there at 1.15 and he put the ticket on at 1.18!
Anyway I have read the advice and just wanted to check whether I wait for the written notice to come in the post from ANPR before I go onto the next stage? I am guessing from previous threads that they are?
Thanks

Umkomaas

Wow, haven't had a thread about ANPR Ltd for some weeks now; I was half thinking they might have been either booted out of the BPA given all the apparent transgressions or had received a DVLA block on obtaining keeper details.

Do a bit of a search on here for 'ANPR Ltd' or 'Trevor Whitehouse' - or on Pepipoo or via Google. Mirth and merriment will abound! If I was to get a PCN, I'd love to have one from owd Trev (gang leader extraordinaire).

But, going back to your question, yep, await the NtK - has to arrive between days 29 and 56 after the parking event (bet they mess up!).

Keep in touch.

LewisLootes

I have also being issued an unfair ticket today, should I also follow this advice ?

pogofish

LewisLootes wrote: »

I have also being issued an unfair ticket today, should I also follow this advice ?

You need to follow the advice you agreed to on signup and not hijack threads!

Now PM a board guide and get your own thread moved into this forum.

Umkomaas

LewisLootes wrote: »

I have also being issued an unfair ticket today, should I also follow this advice ?

Same PPC? If not, you will need to start a new thread of your own (after studying the NEWBIES FAQ sticky) and give us more details about your ticket.

You can follow this thread if the same PPC, but it's not guaranteed the OP will post every detail of their progression through it.

bucko77

Hi All - Just an update. A colleague at work received a letter from ANPR Ltd for the same location (she didn't get a windscreen ticket while I did). I am still waiting for my letter as we speak.

Her letter from ANPR states (the important bits!):
Having read your letter dated 10/2/15, and taking into consideration I personally know the site, I have also talked to the issuer, and seen photographic evidence, all of which confirms the relevant details of the incident, and weakens any argument you may have considered you had.

The generic definition of the infringement ‘Not displaying in the windscreen a current or valid permit’ is as follows: - the only way to determine who has permission to park is by displaying a current and valid permit. Once a permit scheme is introduced it applies to all and is for the benefit of the community. Unfortunately the permit is only valid if it is displayed in an appropriate manner, regardless of whether or not you are entitled to be there. There are those (and I don’t mean you) who led permits to others, who have no entitlement to park on the provisio that if the permit holder receives a PCN, the non-permit holder returns the permit to the owner who will claim ‘it had fallen off the windscreen’. Due to this very reason we decided that if a permit is not on display it could be mis-used elsewhere

We have put together a Popla appeal letter below:

Dear Sir / Madam

Re: Popla Code

As the registered keeper, I appeal on the following grounds:

1. The charge is not a genuine pre-estimate of loss.
2. No standing/authority to form contracts with motorists
3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
4. Unclear and non-compliant signage created no contract with the driver.
5. The ANPR records are unreliable, non-compliant and not proof of one parking event

1. The charge is not a genuine pre-estimate of loss.
£100 is a sum 'plucked out of the air' by the Operator and it bears no relation to any loss. My proposition is that £100 was chosen because it happens to be the maximum figure the BPA feel is a 'tolerable' amount to impose on motorists, when compared to PCNs issued by Councils on street. There is no valid comparison with a private firm alleging 'breach' in order to maximise their own profits and a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of that figure.

I require ANPR Ltd to explain their new calculations behind this charge. My position is that, any 'new' version cannot be accepted as a genuine PRE-estimate. In fact it is a 'post-estimate' of (arguable) 'actual costs' after the event; figures totted up to match the charge, including fully-counted man-hours for 'POPLA appeal work' when in fact less than 2% of PCNs proceed to POPLA. As this is supposed to be a pre-estimate relating to the typical loss caused by an average breach (whether the PCN is appealed or not), any man-hours must be counted only on a minimal pro-rata basis, i.e. they 'might' reasonably count only 2% of the time taken on a POPLA appeal, since the over 98% of cases involve no POPLA work whatsoever.

In the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

If ANPR Ltd present what they describe as a GPEOL statement I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with the landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put ANPR Ltd to strict proof that they ever had such a meeting.

If there was no meeting to discuss the £100 charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94:
''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance...Finally, the factthat the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other.In short, the sum stipulated for was not a genuine pre-estimateof loss but an “in terrorem” sum to deter breach and as such is a penalty.''

A direct comparison can be drawn with Brookfield v Van Boekel that, so far as ANPR Ltd made any calculation as to amount, that calculation related to the balance between deterring breach and enforcementon the one hand and deterring customers, on the other.£100 was simply the maximum set by the BPA, a sum which motorists might 'tolerate'.

Icontend that the figure of £100 is a penalty clause in terrorem to deter breach, neither can it be commercially justified.

POPLA Assessor Chris Adamson stated in June 2014 that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

2. No standing/authority to form contracts with motorists
This Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. I contend that they merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. Authority to merely 'issue tickets' is not the same authority as a right to form contracts in their own right, with visiting drivers. As a commercial site agent acting under an agency agreement 'on behalf of' the a principal, ANPR Ltd has negative responsibility and no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA CoP.

I put ANPR Ltd to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that ANPR Ltd can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows ANPR Ltd to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that ANPR Ltd can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.

3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
In order to pursue Keeper Liability under the POFA, ANPR Ltd must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the “Notice to Keeper” (‘NtK’) as per para. 9 Sch 4 of the Act which reads in part:

“(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must—
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(4) The notice must be given by:
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.”

The NTK fails due to the following reasons:
The following points (A)-(E) may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:

(A) The 'period of parking' is not 'specified', only the times the car was seen in traffic on arrival and on the final time it left that day. There's no evidence of parking at all.
(B) It does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(C) It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified). POFA requires that a NTK describes any 'outstanding' 'unpaid' charges which the driver owed as at a time not later than the DAY BEFORE the issue of the postal NTK. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the day the NTK was issued, because it only arises and could be described as 'unpaid', if at all, at/after the time of receipt of the NTK by the keeper. The inflated PCN amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff that the driver owed before the NTK was issued, to be stated - and that this is the only sum that can be pursued from a registered keeper.
(D) It does not identify the creditor, who could be the landowner, a retailer, a managing agent, or the Operator, or another party. The fact that an Operator's name is on a NTK as the payee, does not 'identify' them as the creditor because administrative functions such as sending notices and collecting monies can be carried out by other parties, such as agents and debt collectors who are never 'the creditor'. This Operator could simply be an administrator, a debt collector only - the creditor could be any other party if not specified here. Such basic detail cannot be assumed. The creditor has to be 'identified' with words to the effect that 'the creditor is...'.
(E) The NTK fails to show the arrangements for complaints and the geographical address of the client/landowner, since this Operator is an agent . This is a requirement for all consumer contracts since June 2014, in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regs 2013 and also a breach of the POFA not to include full details of such arrangements for complaints.

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.

In this case the driver has not been identified so the charge has no legal basis to be enforced against me.

4. Unclear and Non-compliant signage which created no contract with the driver, who did not see any signs.
Operators of Motorway Services Areas (MSAs) and their agents must comply with Government Policy. The Highways Agency, on behalf of the Department for Transport (DfT), published a policy on the provision of roadside facilities on its network, the 'DfT Circular 01/2008: Policy on Service Areas andother Roadside Facilities on Motorways and All-purpose Trunk Roads in England'. The policy states at B19: 'At all types of site, where a charge is to be levied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.' Compliance of the MSA with the above policy is disputed and I therefore require ANPR Ltd to prove that such clearly displayed signage exists within the amenity building(s) at the car park in question. It is not enough to prove that such signage exists merely within the car park itself and that point is covered separately in my appeal.

Furthermore the policy states: 'All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions {TSRGD} and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the
Highways Agency’s signs specialist for the use of all non-prescribed signs.' I put ANPR Ltd to strict proof that the DFT/Highways Agency has granted special authorisation for their traffic signs (any signs relating to traffic) in this particular MSA to be exempt from this policy requirement. It will not be acceptable for ANPR Ltd to claim that these particular signs are in their own opinion not 'traffic signs' when these signs provide information to vehicle users in moving traffic, who may never leave their vehicles.

Failure to comply with Government policy would render the alleged contract unenforceable.

In any case, unless signs are seen and understood before parking, they are not imported into any contract. In a free car park, where the Operator does not own the land (the named principal being the only party capable of offering the spaces and other amenities in the facility), there is no possibility of a contract, since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with ANPR Ltd in this case.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued: 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

5. ANPR records are unreliable and not proof of one parking event.
The charge is founded entirely on a photo of my vehicle entering/leaving the car park at specific times. I put ANPR Ltd to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to my case/my vehicle, not vague statements about any maintenance checks carried out at other times.

The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue:
http://www.britishparking.co.uk/How-does-ANPR-work
The BPA says: ''As with all new technology, there are issues associated with its use:
Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

Since I am merely the registered keeper, I have no evidence to discount the above possibilities. ANPR Ltd show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing or filling up with petrol or water, nor can they show the car did not leave the site and return. This could easily be a case of two visits, or if my vehicle was on site for the time shown, I suggest that it may well not have been 'parked' for more than 2 hours. There is a petrol station on site, as well as air and water, so I put ANPR Ltd to strict proof of actual parking for over two hours with no other petrol station-related activity. Even if the car first drove past the cameras and though the car park the driver may have decided to get petrol whilst the passengers were in the MSA facility and so 'parking' for over two hours would not have occurred. The Government rules require a full two hours free parking to allow a driver to rest. So I require ANPR Ltd to rebut these assertions.

I agree with the BPA that this ANPR technology has issues associated with its use. These also include (but are not limited to) synchronisation errors, buffering, faults with the timer, faults with one or other of the cameras, faults with the wireless signals and differences between the settings of the in/out clocks. The operator uses WIFI with an inherent delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever accurate to the minute.

In addition, the BPA CoP contains the following in paragraph 21:
''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''
ANPR Ltd fail to operate the system in a 'reasonable, consistent and transparent manner'. They place signs far too high to see on arrival and these are not lit, so there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

We are not sure if we need to add anything else about permits etc or if we need to put about the ANPR photo evidence or any more details about the piece of land (the sign doesn't seem to relate to the area where we got the ticket as it is outside the car park which we think it relates to).
Any advice would be appreciated
Thanks again

bod1467

Ah! Ye olde "personally know the site" bull. Was it also signed by the fictitious "N. Martin"? (Clever Trevor is certainly consistent).

johnweir123

I've read most of what was written above and I'm looking at a similar case with similar contraventions of POFA and BPA code of practice.


What I've found is that the companies I'm dealing with have simply put fingers in ears and starting singing "la la la, I can't hear you"

I've posted a separate topic to ask about that but I can't see any way to compel the parking companies and debt recovery companies to follow the law. It seems they will hopefully press ahead even without sound legal basis to do so.

bucko77

It did come from N Martin!
Any advice on the content and whether it is the right approach to send to POPLA would be appreciated before I send it

bazster

Read the Newbies thread, lots of links there to PoPLA appeals you can cannibalise.

"Not a GPEOL" is the proven winner.

bucko77

Thanks for that - I have read the newbies thread and put this together. Just wanted to see if it looked OK before sending!
I am most concerned with the section 5 specific to ANPR. They discuss photographic evidence on their letter so should I put something in about this even though it is on private land? (I will alter the bits about car park before sending to private land) or do I leave this bit out?
Thanks