Parking on Private Land - Trespass Notice

[andydakin]

The company I work for has received a "Notice of Trespass" in relation to one of our wagons being stopped on the roadside on a private industrial estate in Felixstowe. Note that this was not parking in a bay or layby but simply pulled up on a roadway (on yellow lines). This was recorded on CCTV. The agents, Proserve Enforecment Solutions issued a Notice for Trespass on 10th May for £100 (plus VAT) which we ignored in the same way as we would for a private company issuing a parking PCN. We have now received a second letter with a 50% additional charge suggesting that if payment is not received by Friday 1st June they "will" register the charge with the County Court. Usually the parking PCN's use the word "may" rather than "will".

 

Are we in a different situation because they are using Trespass rather than just an ordinary parking notice? I would appreciate anyone's experience or advice with Proserve Enforcement or this type of notice.

[Aretnap]

A PPC would have just as much trouble bringing an action for trespass as they would under contract law.

 

(1) Do they actually own or occupy the land? Probably not. If they don't have sufficient interest in the land to bring an action for trespass, it falls at the first hurdle. VCS found this out lately - see the thread lower down the forum.

(2) Was your staff member there with the occupier's permission (implied or actual)? If so he wasn't trespassing - at least not until someone told him to leave, or at least until he left the van somewhere he was told not to. If he was actually parked then arguably the double yellow lines should have conveyed the message that he wasn't supposed to park there, but if he was just pulled up briefly then this point is more tenuous.

(3) While trespass is actionable per se, unless the person bringing the action can show that he's suffered an actual loss he can only claim nominal damages (a pound?). So what loss have they suffered, and where does the figure of £100 come from?

 

I'm not familiar with Proserve Enforcement, but they sound quite clueless. It doesn't sound like they understand the court process very well; if they have £25 to spare they can issue a claim and see if you defend it, and if so whether a judge will side with them, but one doesn't simply "register a charge with the County Court" and magically make it enforceable. And their Enforcement Protocol (link here) is liberally sprinkled with terms like "Fixed Penalty Notice" and "fine".

[raydetinu]

have a look at this:

Parking company comes acropper in court

Back in February 2011,a First Tier Tax Tribunal ruled that Vehicle Control Services, a privateparking company which did not have an interest in a car park which it wasonly managing on behalf of a landowner, was not entitled to sue trespassersas principal.

VCS and their parent company Excel happilycontinued to issue court claims while they appealed to the UpperTribunal.

However, in March 2012, the Upper Tier Tribunal agreedwith the First Tier Tribunal that VCS had insufficient interest in the carparks to pursue a trespass claim and decided that there was no contractbetween the motorists and VCS.

This was confirmed on 16th May2012 when VCS lost their case (VCS v Ronald Ibbotson) at S****horpe CountyCourt.

The Judge ruled that only the landowner can take thematter to court and not people acting as their agents (VCS) and that thelandowner then has to prove damages.

VCS have also been orderedby the court to explain why they issued a claim when they had no lawfulcontractual assignment of authority to do so.

This statementshould make interesting reading.

Readmore

[Conniff]

The upping of the charge is good enough to ignore as a penalty charge and the courts won't wear that, or they haven't in the past.

 

Anyway, you 'dont' register anything with the county court, you issue a summons and the court decides the outcome of that summons. What a load of numptys.

[raydetinu]

The conclusion I draw from this is that the security company cannot in itself bring any action against you, only the landowner.

Also they cannot apply for any punitive costs, they would only be able to claim damages?

[Spec1]

The conclusion I draw from this is that the security company cannot in itself bring any action against you, only the landowner.

Also they cannot apply for any punitive costs, they would only be able to claim damages?

 

Can you advise me what would happen if the securtity company had authority from the landowner to issue a claim for trespass in the landowners name. What also if the landowner were to claim for having to use the security company to protect the property as a service is this the damage to the landowner ?

[dpick]

Hi the experts will be along but I believe that the authority need by a PPC to have a cause of action in court from the land owner would give far to many rights to the PPC for the land owner to allow them to have.

 

dpick

[Spec1]

Hi the experts will be along but I believe that the authority need by a PPC to have a cause of action in court from the land owner would give far to many rights to the PPC for the land owner to allow them to have.

 

dpick

Thanks but my concern if they are given the right to issue as where VCS did not, this will give them the upper hand, and also the right to claim for their service as damage to the landowner for the trespass.

[DBC]

But what actual "damages" are there. In fact there was no damage so they cannot claim anything.

[Spec1]

But what actual "damages" are there. In fact there was no damage so they cannot claim anything.

 

Damage does not have to be physical, The damage to the landowner is his need to use a security company to protect his property from people who park (trespass) trespass is as previously mentioned actionable where no damage needs to be proved. Take this as an example the landowner does not give the right to park on his property by way of contract it is then trespass if he runs a commercial parking area which is only occupied by licencees if those licencees are not given fee access to use their spaces, the owner could be in jepody of loosing his business, if he could not stop trespassers occuping licencees spaces his answer would be he had to use the security company to protect his land, therefoe their fees is his damage, see what I mean

[DBC]

The money paid to the security has no bearing on any supposed damages. Even if nobody trespassed on the land the security company would still have to be paid. This fact was highlighted in a recent retail civil recovery court case where the judge said that the normal wages paid to the security staff could not be included in the amount claimed because those wages were part of their "core activity" and would have had to be paid otherwise.

 

As for depriving legitimate users from their parking spaces, this was not the case. Note the first post:-

this was not parking in a bay or layby but simply pulled up on a roadway (on yellow lines).

[Michael Browne]

You can't have it both ways. You employ a security company to protect your land, but they do such a bad job that they allow unauthorised parking and you want to claim the cost of the security from the trepassers. I'd sack the security company.

[Spec1]

The money paid to the security has no bearing on any supposed damages. Even if nobody trespassed on the land the security company would still have to be paid. This fact was highlighted in a recent retail civil recovery court case where the judge said that the normal wages paid to the security staff could not be included in the amount claimed because those wages were part of their "core activity" and would have had to be paid otherwise.

 

As for depriving legitimate users from their parking spaces, this was not the case. Note the first post:-

this was not parking in a bay or layby but simply pulled up on a roadway (on yellow lines).

I see I understand the reason for the first post I was talking about the fact it was classed as a trespass issue, can you not trespass on a road then ?was the recent retail civil recovery Court case in relation to trespass to land?

[Spec1]

You can't have it both ways. You employ a security company to protect your land, but they do such a bad job that they allow unauthorised parking and you want to claim the cost of the security from the trepassers. I'd sack the security company.

 

What if you don't directly employ the company, say if it is by way of contract where they earn out of the issue of the notices on behalf of the landowner and the landowner agrees that these fees are his damage ?

[DBC]

It was about recovering damages, that's all that's important . The law of the lands says that one private citizen cannot punish another private citizen. If you try and claim punitive damages that bear no relation to the actual loss that has occurred then that would be classed as an unfair penalty.

[postggj]

their is no criminal law of trespass, gone are the days of "trespassers will be prosecuted"

 

trespass is now a civil tort and all you can claim for is damages for denying the land owner of property etc

 

the police cannot even arrest for trespass, they would use criminal damage for example if climbing over a fence

 

unless the consequential loss can be proved, their is no case

[Old Snowy]

What if you don't directly employ the company, say if it is by way of contract where they earn out of the issue of the notices on behalf of the landowner and the landowner agrees that these fees are his damage ?

That is trying to have your cake and eat it.

 

The only person who can suffer a wrong (and therefore claim damages) in this scenario is the landowner. He may quite properly delegate the actioning of proceedings to an agent but the original wrong must be suffered by and the damages be due to the landowner. If, and it remains to be seen that Proserve are empowered to act as the landowner's agent, the agent incurs costs, staffing, vehicle and cameras etc (whatever they may be) in the course of its normal business at the site then they are not costs linked to the alleged trespass and are not transmuted into damages simply because the landowner says so.

 

If a security company, such as Proserve, is permitted to retain any charges it secures from motorists on behalf of its principal then they are fees by way of a consideration for their services created by way of the contract between them and the landowner. If retaining fees, in the way suggested, is the only means by which the security company secures payment (and yet it incurs disproportionately higher costs in securing them) then, aside from questioning the business acumen of the company, it is a matter between it and its principal. The motorist has no involvement in the performance or otherwise of that contract and cannot be expected to. As such retained fees become a consideration then they also become liable to assessment for VAT purposes. (see VCS v HMRC [2012] UKUT 130 (TCC)).

 

There must be a connection between the putative tortfeasor's conduct and the damages sought. If all that is alleged is that a vehicle was parked (briefly it would appear) on a road which was presumably designed for the passage over and parking on it of vehicles then what harm, other than a technical trespass has been caused? Have crops been flattened, fences destroyed, road surface ripped up or kerbs crushed?

 

If damage was so imminent by the parking or a vehicle then what steps did the landowner take to prevent it? The fact that a vehicle parked (and it is highly unlikely to have been the first - otherwise why was the security company employed?) would be sufficient to show that the simple placing of yellow lines was insufficient for the landowner to show that he took steps to reduce his loss as he is required to do. Why wasn't someone posted at the spot, or in the vicinity to shoo potential parkers away?

 

Boiling it down to gravy, its a nonsense.

Edited August 5, 2012 by Old Snowy
tidying

[Spec1]

That is trying to have your cake and eat it.

 

The only person who can suffer a wrong (and therefore claim damages) in this scenario is the landowner. He may quite properly delegate the actioning of proceedings to an agent but the original wrong must be suffered by and the damages be due to the landowner. If, and it remains to be seen that Proserve are empowered to act as the landowner's agent, the agent incurs costs, staffing, vehicle and cameras etc (whatever they may be) in the course of its normal business at the site then they are not costs linked to the alleged trespass and are not transmuted into damages simply because the landowner says so.

 

If a security company, such as Proserve, is permitted to retain any charges it secures from motorists on behalf of its principal then they are fees by way of a consideration for their services created by way of the contract between them and the landowner. If retaining fees, in the way suggested, is the only means by which the security company secures payment (and yet it incurs disproportionately higher costs in securing them) then, aside from questioning the business acumen of the company, it is a matter between it and its principal. The motorist has no involvement in the performance or otherwise of that contract and cannot be expected to. As such retained fees become a consideration then they also become liable to assessment for VAT purposes. (see VCS v HMRC [2012] UKUT 130 (TCC)).

 

There must be a connection between the putative tortfeasor's conduct and the damages sought. If all that is alleged is that a vehicle was parked (briefly it would appear) on a road which was presumably designed for the passage over and parking on it of vehicles then what harm, other than a technical trespass has been caused? Have crops been flattened, fences destroyed, road surface ripped up or kerbs crushed?

 

If damage was so imminent by the parking or a vehicle then what steps did the landowner take to prevent it? The fact that a vehicle parked (and it is highly unlikely to have been the first - otherwise why was the security company employed?) would be sufficient to show that the simple placing of yellow lines was insufficient for the landowner to show that he took steps to reduce his loss as he is required to do. Why wasn't someone posted at the spot, or in the vicinity to shoo potential parkers away?

 

Boiling it down to gravy, its a nonsense.

 

If there are signs at the site posting the amount of a charge in relation to a trespass and the sign states you agree to the amount of the charge, if someone acts outside the condition of use of the land,, does that not give implied consent to the charge in the same way as a clamp?

[Conniff]

If there are signs at the site posting the amount of a charge in relation to a trespass and the sign states you agree to the amount of the charge, if someone acts outside the condition of use of the land,, does that not give implied consent to the charge in the same way as a clamp?

 

No, because this is based on a contract between you and whoever and a contract damages are based on losses. The gready sods say one price and then another if you pay within so many days. As the courts asked one company, if this is based on losses, then which one is the loss, the higher or the lower. If it's the higher, then why would you take a loss and if it's the lower then the higher must be a penalty charge and threw the case out.

[DBC]

Define "agree to the contract". If that person does not consent to that contract but still parks there then it turns into a trespass issue where the landowner can only claim for the actual loss suffered.

 

You seem to be confusing breach of contract with trespass. They are two different issues.

 

Edit. This answer is directed at Spec1

[Spec1]

Define "agree to the contract". If that person does not consent to that contract but still parks there then it turns into a trespass issue where the landowner can only claim for the actual loss suffered.

 

You seem to be confusing breach of contract with trespass. They are two different issues.

 

The reason for the question is when a vehicle is clamped for trespass it is tort and not contract as I have seen some clamp sites with varying costs for cars, vans, commercials how is that the case ?

[Old Snowy]

Attempting to impose a charge that is clearly a penalty and, in any event one that cannot be negotiated by the individual contractor is never going to fly whether one views it from the perspective of case law (Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Company Ltd [1915] AC 79) or that of the Unfair Terms in Consumer Contracts Regulations. Either the charge represents a genuine (and therefore quantifiable) pre-estimate of damages or it is a penalty. Attempting to use the concept of volenti or even distress damage feasant simply isn't going to work.

 

In any event, if damages are going to be claimed the claimant is going to have to demonstrate what positive steps he has taken to minimise his loss - as I have already alluded. Thinking that one might sit back and rely upon payments from chance transgressors to make good purported damage to your property when you have taken no steps yourself to reduce, minimise or eliminate any damage is going to have all of the aerodynamic qualities of a concrete glider.

[Spec1]

Attempting to impose a charge that is clearly a penalty and, in any event one that cannot be negotiated by the individual contractor is never going to fly whether one views it from the perspective of case law (Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Company Ltd [1915] AC 79) or that of the Unfair Terms in Consumer Contracts Regulations. Either the charge represents a genuine (and therefore quantifiable) pre-estimate of damages or it is a penalty. Attempting to use the concept of volenti or even distress damage feasant simply isn't going to work.

 

In any event, if damages are going to be claimed the claimant is going to have to demonstrate what positive steps he has taken to minimise his loss - as I have already alluded. Thinking that one might sit back and rely upon payments from chance transgressors to make good purported damage to your property when you have taken no steps yourself to reduce, minimise or eliminate any damage is going to have all of the aerodynamic qualities of a concrete glider.

Is distress damage feasant still available to landowners as a remedy, although the Protection of Freedoms Act reports to stop the removal of cars from land ?

[Old Snowy]

Is distress damage feasant still available to landowners as a remedy, although the Protection of Freedoms Act reports to stop the removal of cars from land ?

Yes, the concept still exists. However, distress damage feasant did not evolve as a means for withholding/removing vehicles but as a means of dealing with straying stock that caused damage to or ate crops on land. The concept permitted the retention of stock against reparation for the damage caused and has been subject of several attempts to use it as a justification for clamping/towing. Even limited research will uncover cases (albeit old ones) that deliver something of a "killer" blow in terms of their being used as a means of legitimising clamping. There must be quantifiable damage and quite how a car being parked in a car park causes damage one continues to wonder? Then of course there is the convention attached to the concept that means that one does not impound a man's horse. Might not this now be applied to a man's car?

 

I assume you mean that "...the Protection of Freedoms Act " purports, as opposed to "...reports, to stop the removal of cars"? The Act doesn't purport to make illegal the removal of cars parked on private land (generally speaking) it states it unequivocally.

[Spec1]

Yes, the concept still exists. However, distress damage feasant did not evolve as a means for withholding/removing vehicles but as a means of dealing with straying stock that caused damage to or ate crops on land. The concept permitted the retention of stock against reparation for the damage caused and has been subject of several attempts to use it as a justification for clamping/towing. Even limited research will uncover cases (albeit old ones) that deliver something of a "killer" blow in terms of their being used as a means of legitimising clamping. There must be quantifiable damage and quite how a car being parked in a car park causes damage one continues to wonder? Then of course there is the convention attached to the concept that means that one does not impound a man's horse. Might not this now be applied to a man's car?

 

I assume you mean that "...the Protection of Freedoms Act " purports, as opposed to "...reports, to stop the removal of cars"? The Act doesn't purport to make illegal the removal of cars parked on private land (generally speaking) it states it unequivocally.

 

I have been reading about distress damage feasant, according to the powers of distress, author J kruse, this remedy is available to any object on another's property, and as you say it was derived from livestock, but according to his book it appears it is open to all items that are not entitled to be on another's land without consent of the owner of the property. The reason why I say it reports and not purports as if this remedy is open to any item and it has not been altered by the Act, then surely removal with lawful authority as this common law remedy is ,will mean anybody with written authority from the landowner could remove.

 

According to Kruse's book as no damage need to be proved in a action of trespass, therefore there needs no quantifiable damage to be proved, simply the fact the car was parked in the car park would be depriving the owner, or another who is entitled to use that space,of the right to use that space is damage.