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POPLA Appeal help please - Athena ANPR (Lidl car park)

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Replies

  • ShepssShepss Forumite
    42 Posts
    Hello again. Further to my last , I have put together an appeal which I hope kind folk will ' shoot down ' if any of the points do not bear up. My poor old head is spinning now and I'll pick it up again end of next week when the family have all gone home! I've also made a mental note not to shop at Lidl again , too much hassle as it seems many many on here have found!
    ColliesCarer , you said the pre estimate of loss para(s) may have to be adjusted to take account of extra points and I'd appreciate any hints on this point.I did say in my original appeal to Athena that if alleging ' contractual fee ' 'I require that you now send me a VAT invoice by return and explain daily rate of parking' etc etc which they obviously did not do in their rejection letter.
    I see the 2010 Disability Act says something like ' substantial long term negative effect on life....' In my case I need two new hips , the first operation could not be done two months ago because I suffer from tongue swellings and just before the op had to be rushed to A and E because I could not breathe! I was taken off the list but am in constant pain. I have no parking permit but may have to get one soon as I cannot walk more than a few hundred yards at the present time. However , to include any of this I would have to go into who was driving , so may be best left out and stick to that below.....

    POPLA Code:
    Vehicle Reg:
    PPC: Athena ANPR
    PCN Ref:
    Alleged Contravention Date & Time:
    Date of PCN:

    On xx of xxx 2014 I was sent an invoice from Athena ANPR as 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:

    - No Creditor identified on the Notice to Appellant
    - No authority to levy charges
    - Lack of contract
    - Charge not a genuine pre-estimate of loss
    - Cameras
    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.
    I therefore respectfully request that my appeal is upheld and the charge dismissed.

    No authority to levy charges
    A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract. The operator must produce evidence to demonstrate that it is the landowner, or a contract or other evidence that it has the authority of the landowner to issue charge notices at this location. The appellant believes there is no contract with the landowner/occupier that entitles Athena ANPR to levy these charges and to pursue these charges in their own name in the Courts and therefore has no authority to issue charge notices. When requested on appeal Athena ANPR failed to provide a copy of the contract. The appellant puts the operator to strict proof to POPLA that they have the necessary legal authorisation at this location and demands that the operator produce to POPLA the contemporaneous and unredacted contract between the landowner and the operator.
    I therefore respectfully request that my appeal is upheld and the charge dismissed.

    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.

    Charge not a genuine pre-estimate of loss
    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.

    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 ,
    wxyz

    Sorry for the long winded post everyone.Any help very gratefully received!
  • Hot_BringHot_Bring Forumite
    1.6K Posts
    Number your points ( and your summary list ) and move GPEOL to be number one. You will win with that.
    "The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis." - Dante Alighieri
  • ShepssShepss Forumite
    42 Posts
    ColliesCarer , Just noticed your post number 21 , thank you will study that when I have time . With the extended family milling about I'll need some light relief later!! Hot Bring , many thanks too.
  • oh look , parking for life for £90 , one you have accepted there contract they cannot evict you ,
  • ColliesCarerColliesCarer Forumite
    1.6K Posts
    Hi Shepss,

    I've drafted below (in blue) a suggested starter for 10 for the extra you need to add to take into account the contractual term aspects
    It's a bit wordy and others may be able to give you a more concise suggestion

    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, ......... (and remainder of your existing paragraph)


    Would also suggest you number your points, both in the list and in the body of the appeal.
  • ShepssShepss Forumite
    42 Posts
    ColliesCarer , thank you for all your excellent work and particularly your latest most helpful post. I've gone quiet as I said before because the house has been full of family , my son left for Devon this a.m with the family so I will be looking at finishing a draft letter this weekend.
  • ShepssShepss Forumite
    42 Posts
    I've finally had the chance to sit down and draft this one out. My many many thanks goes to Collies Carer for the time he or she has taken on our behalf.
    Here's the draft of the letter I intend to send to POPLA. I've not made any reference to our health problems and as I said before we paid cash at Lidl and it is now closed for refurbishing anyway. Anyway , in mentioning the health reason I would have to give away the information that I was driving the car which probably wouldn't be wise given my appeal.
    POPLA Code:
    Vehicle Reg:
    PPC: Athena ANPR
    PCN Ref:
    Alleged Contravention Date & Time:
    Date of PCN:

    On xx of xxx 2014 I was sent an invoice from Athena ANPR as 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.



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

    3 ) No authority to levy charges
    A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract. The operator must produce evidence to demonstrate that it is the landowner, or a contract or other evidence that it has the authority of the landowner to issue charge notices at this location. The appellant believes there is no contract with the landowner/occupier that entitles Athena ANPR to levy these charges and to pursue these charges in their own name in the Courts and therefore has no authority to issue charge notices. When requested on appeal Athena ANPR failed to provide a copy of the contract. The appellant puts the operator to strict proof to POPLA that they have the necessary legal authorisation at this location and demands that the operator produce to POPLA the contemporaneous and unredacted contract between the landowner and the operator.
    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 ,
    wxyz


    If anyone reading this has any further thoughts before I send it off I'd greatly appreciate it. ColliesCarer , Coupon-Mad and others who responded to my cry for help , thank you again. What a lovely helpful site this is for all in need of advice!
  • Hi Shepss,

    That's looking very good indeed.

    I've only a few minor tweaks to suggest, which are below.

    Coupon-Mad is far far more knowledgeable than I about the correct wording to use when dealing with signs that try to claim contractual sum so, in addition to seeing what feedback you get from others, I would suggest you also wait for feedback from C-M (I know she's taking a well earned break with family this week-end) as long as that doesn't risk you not getting this in on time of course.

    Ok the tweaks mentioned earlier are:

    1/ In section 1 b) paragraph three - the BPA recommended maximum charge is £100, so the line below could be misinterpreted and it may be best to change it as indicated

    from this - 'Furthermore, it exceeds the BPA’s own Code of Practice.
    The BPA Code of Practice states:'

    To this - 'Furthermore, the BPA Code of Practice states:'

    2/ Also at the end of 1 b) immediately after you have quoted the POPLA assessor insert the words - 'My case is the same.'


    3/ And lastly in point 4) would suggest changing this line

    '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.'

    To this

    'And even if there was a contract, which is denied, then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.'

    Hope that's useful
    Regards
    CC
  • ShepssShepss Forumite
    42 Posts
    ColliesCarer , once again my many thanks for your help and the further points. The only thing I've got to be careful of is the Easter break this weekend. I make it 28 days runs out on the 22nd although Parking Cowboys says the code was generated a day early.
    So I guess to be sure I'll deal with it tomorrow or Wednesday latest. I will post the amended appeal now and hope that Coupon-Mad gets the chance to run her eye over it.

    POPLA Code:
    Vehicle Reg:
    PPC: Athena ANPR
    PCN Ref:
    Alleged Contravention Date & Time:
    Date of PCN:

    On xx of xxx 2014 I was sent an invoice from Athena ANPR as 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, 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.


    My case is the same.



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

    3 ) No authority to levy charges
    A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract. The operator must produce evidence to demonstrate that it is the landowner, or a contract or other evidence that it has the authority of the landowner to issue charge notices at this location. The appellant believes there is no contract with the landowner/occupier that entitles Athena ANPR to levy these charges and to pursue these charges in their own name in the Courts and therefore has no authority to issue charge notices. When requested on appeal Athena ANPR failed to provide a copy of the contract. The appellant puts the operator to strict proof to POPLA that they have the necessary legal authorisation at this location and demands that the operator produce to POPLA the contemporaneous and unredacted contract between the landowner and the operator.
    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 is denied, 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 ,
    wxyz


    Kind regards , Shepss
  • ShepssShepss Forumite
    42 Posts
    CC , firstly many thanks for your pm. Without you help I wouldn't have had a clue! I've jigged around some of it and here's my last valiant effort. If Coupon-Mad is around now I'd appreciate her running her eyes over it as well , although it seems to contain enough points to bamboozle them.
    POPLA Code:
    Vehicle Reg:
    PPC: Athena ANPR
    PCN Ref:
    Alleged Contravention Date & Time:
    Date of PCN:

    On xx of xxx 2014 I was sent an invoice from Athena ANPR as 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 ,
    wxyz


    Kindest regards , Shepss
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