Parking on private land from October 2012 legislation

[Surfer01]

Will at any point PPC's be able to demand the details of the driver from the registered keeper under the proposed changes regarding parking and private land.

I know it was only a proposal a few months ago, but is anything going to change in favour of PPC's or clampers?

[Dublindel]

They can ask, that's it

[spb1957]

As I understand it, the PPCs will be able to hold the keeper responsible if the driver is not identified. Whether or not they will be able to enforce their ridiculous charges through the courts remains to be seen.

 

As for clampers on private land..................arrivederci !

[Crocdoc]

As I understand it, the PPCs will be able to hold the keeper responsible if the driver is not identified. Whether or not they will be able to enforce their ridiculous charges through the courts remains to be seen.

 

As for clampers on private land..................arrivederci !

 

In England and Wales technically they will be able to pursue the keeper / Owner for payment, however that in my opinion will be easier said than done. As it stands as of the 1st October the company will request the name of the driver and if that information is not provided then they can request payment from the keeper. At this point the keeper can appeal to the company, if that fails and I imagine it will in most cases, the keeper can then appeal to the "independant appeals panel" at a cost of £27.00 plus VAT to the pursuing company. The sting in the tail for the parking comapanies comes at the end of this procedure as the decision is only binding on the company and not on the driver / owner, therfore the only recourse for recovery will be through the courts at which stage all the arguments surrounding the legality of such charges will come back into play.

Alternatively all parties who receive such demands can continue to ignore as has been done for many years.

In Scotland there will be no such change and the keeper / owner will still be able to refuse to provide driver details.

I am sure there will be much more information posted as time goes on.

In short I fail to see what difference any of this will make as the keeper / driver debate is ONLY A VERY SMALL PART OF A MUCH BIGGER PICTURE.

[Dublindel]

The first argument is that the RK was not the driver so could not have read the T&Cs so cannot have entered into a contract.

[Surfer01]

Are there any links to the proposed legislation? Thanks.

[DBC]

It's not "proposed", it's going to be actual law come October 1st. Please look at post #4 for more information.

[Surfer01]

It's not "proposed", it's going to be actual law come October 1st. Please look at post #4 for more information.

At the moment it is a proposal waiting to become legislation. I am looking for a link to the proposal or pending legislation.

[Crocdoc]

Section 4 of the Protection of Freedoms Act or alternatively you can find the details on the BPA website.

[esmerobbo]

At the moment it is a proposal waiting to become legislation. I am looking for a link to the proposal or pending legislation.

 

http://www.publications.parliament.uk/pa/cm201011/cmbills/146/en/11146en.htm

 

 

Clause 56: Recovery of unpaid parking charges

 

203. Clause 56 gives effect to Schedule 4 which makes provision in certain circumstances, for the recovery of unpaid parking related charges incurred under a contract from the keeper of a vehicle.

 

Schedule 4: Recovery of unpaid parking charges

 

204. Paragraph 1 introduces the scheme as provided for in Schedule 4. The scheme provides that, subject to certain conditions being met, the keeper of a vehicle may be made liable for an unpaid parking charge that has been incurred by the driver of the vehicle having entered into a contract with a landowner and/or his or her agent in relation to parking the vehicle on the landowner’s land. The scheme is based on the legal analysis that a driver of a vehicle by parking on private land impliedly accepts the landowner’s offer to park (or that of a parking company acting as the landowner’s agent), or prohibition on parking and agrees to comply with the terms and conditions (including any parking charges and the associated enforcement mechanism for those charges) advertised on a notice board at the entrance to and within the land. If the terms and conditions are not adhered to by the driver then the vehicle can be "ticketed" for charges due under the terms of the contract.

 

205. Under the current law, a parking provider (termed "the creditor" in this Schedule) wishing to enforce charges against a driver is able to obtain details of the vehicle keeper from the DVLA if they are able to show "reasonable cause" for wanting the information (so as to satisfy regulation 27(1)(e) of the Road Vehicles (Registration and Licensing) Regulations 2002 (SI 2002/2742)). A responsible landowner (or his or her agent) providing parking in accordance with industry best practice has reasonable cause to seek from the DVLA the keeper details of a vehicle in respect of parking related charges that have not been paid. The DVLA requires landowners or their agents requesting keeper details for parking enforcement purposes to be members of an accredited trade association (the British Parking Association is the only trade association currently so accredited). Whilst the landowner (or his or her agent) may seek to recover unpaid parking charges from the vehicle keeper, as the law is currently understood to stand, any parking contract will be between the driver of a vehicle and the parking provider and accordingly the keeper may not be liable for the charges incurred if he or she was not the driver.

 

206. Paragraphs 2 and 3 define various terms used in the Schedule. The scheme applies only to vehicles parked on "relevant land", the definition of which excludes a highway maintainable at public expense and a parking place provided or controlled by a traffic authority. Other land where parking is governed by a statutory scheme including that contained in Part 6 of the Traffic Management Act 2004 (which includes provision for keeper liability) is also excluded from the scheme as set out in this Schedule.

 

207. Paragraph 4 provides that the creditor has a right to seek to reclaim unpaid parking charges from the keeper of the relevant vehicle if the conditions set out in paragraphs 5 to 7 are satisfied. The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(8)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity. The right to reclaim unpaid parking charges from the vehicle keeper does not apply in cases where the vehicle has been stolen before it was parked, that the theft was properly reported and the vehicle had not been recovered before the parking commenced (paragraphs 4(3) to (6)). The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (paragraph 4(7)).

 

208. Paragraph 5 sets out the first condition which is that the creditor must have the right to enforce a parking contract against the driver of a vehicle but be unable to do so because the creditor does not know the name and current address of the driver.

 

209. Paragraph 6 sets out the second condition which is that a notice to the driver in respect of the parking charges must either have been given to the person in charge of the vehicle or affixed to the vehicle whilst it was still located on the land and that at least 28 days must have elapsed since that event (this is to allow time for the driver of the vehicle to pay the sums due under the notice). Paragraph 6(2) lists the matters that must be set out in the notice, including the total amount of the parking charges payable. In the event that the notice is not settled by the driver, the creditor may not pursue the keeper of the vehicle for more than the sum specified in the enforcement notice.

 

210. Paragraph 7 sets out the third condition (which applies only to registered vehicles) which is that the creditor has applied to the Secretary of State (in practice, the DVLA) for the name and address of the keeper, that information has been provided and the creditor then makes a claim against the keeper within 60 days of the keeper details being obtained.

 

211. Paragraph 8 provides that the scheme applies to Crown vehicles that are required to be registered with the DVLA and to the keeper of such vehicles. The scheme does not, however, apply to vehicles used for military purposes or that belong to visiting forces.

 

212. Paragraph 9 confers a power on the Secretary of State or the Welsh Ministers to amend certain provisions in Schedule 4 by order (subject to the affirmative resolution procedure); the relevant provisions are the exceptions to the definition of "relevant land" in paragraph 3(1), the definition of a "traffic authority" in paragraph 3(2); the exceptions to the right to claim unpaid parking charges in paragraph 4; and any of the conditions in paragraphs 5 to 7.

[Michael Browne]

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

[Surfer01]

Thanks I also found it at http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted Seems the only thing that has really changed is clamping which has been outlawed. As for parking invoice they cannot enforce if you do not supply the name of the driver. Reading the above and the legislation, seems the motorist is home free again for a change.

[vax2002]

I have a sneaky feeling courts will be instructed to find against keepers.

It has that "smell" about it.

 

The right to silence is probably the best option from the outset.

[Crocdoc]

I have a sneaky feeling courts will be instructed to find against keepers.

It has that "smell" about it.

 

The right to silence is probably the best option from the outset.

 

I don't agree as courts are already finding against these companies and the separate legal arguments cannot be ignored. Who was driving becomes an irrelevance and should not be used as a total defence in any case..

Edited September 3, 2012 by Crocdoc

[DBC]

I don't agree as courts are already finding against these companies and the separate legal arguments cannot be ignored. Who was driving becomes an irrelevance and should not be used as a total defence in any case..

 

I agree. The new law doesn't change the basis principles of contract law which states the landowner can only claim for the actual losses suffered, and not some imaginary amount dreamed up by a PPC.

[spb1957]

A responsible landowner (or his or her agent) providing parking in accordance with industry best practice has reasonable cause to seek from the DVLA the keeper details of a vehicle in respect of parking related charges that have not been paid.

 

Interesting wording there I thought. Surely the agents here (the PPCs) are not the providers of parking, therefore not legally entitled to obtain details from the DVLA .

[Surfer01]

Interesting wording there I thought. Surely the agents here (the PPCs) are not the providers of parking, therefore not legally entitled to obtain details from the DVLA .

Good point and if the PPC does get someone to pay them £60, how much of it goes to the LL? Do LL's pay the PPC to govern parking or is it on a commission basis?

[Old Snowy]

Good point and if the PPC does get someone to pay them £60, how much of it goes to the LL? Do LL's pay the PPC to govern parking or is it on a commission basis?

I have previously argued that the type (and size) of payments from PPC's to landlords should more accurately be described as a royalty. The PPC is, in effect, making a payment to secure continued use of the landlord's asset - the car park - and such payments represent a percentage of the PPC's take. What else is that sort of payment if it isn't a royalty? The going rate seems to be of the order of £10 per collected (i.e. paid) invoice.

 

As for non-leaseholding PPC's obtaining DVLA data it seems that that Swansea are satisfied if there is evidence of a contract in place between the PPC and landlord. The VCS judgment has been put to the DVLA but they appear to take the position that this does not materially affect the "reasonable cause" argument although, I for one, am damned if I understand their reasoning.

[dw190]

I for one, am damned if I understand their reasoning.

 

One word answer "Money"

[Crocdoc]

Only time wiil tell with all this, but what is certain is that pressure is mounting ot the entire private parking industry and their methods . Personally I am not conviced by statements made by the British Parking Association about the success and fairness of the new scheme. In my opinion they are merely trying to claim victory out of what could become a disaster in the longer term. In recent weeks it has become apparant that some local authorities are becoming increasingly concerned about their ties with this partcular industry where they employed to manage unregulated car parks owned by the authority.

 

A further issue surrounds the involvement of debt collection agents who are hounding people for payment even in circumstances where the recipient of an invioce has intimated their intention to defend any subsequent court action. In my opinion, this can only be harassment aimed at discouraging people from exercising a Stautory Right. Furthermore, when it gets to this stage it no longer involves one but two companies who have no legal status of any description.

 

In returning to my initial point has anyone noticed that since the start of this most recent debate the private parking companies themselves have been very conspicuous by their lack of comment.

[benny46]

Doesn't this mean that they can pursue the keeper if the driver doesn't pay "In the event that the notice is not settled by the driver, the creditor may not pursue the keeper of the vehicle for more than the sum specified in the enforcement notice." final part of paragraph 6.

[DBC]

They can pursue who they like, but it doesn't change the fact that they can only claim for actual losses suffered by the landowner.Contract law hasn't changed.

[Crocdoc]

They can pursue who they like, but it doesn't change the fact that they can only claim for actual losses suffered by the landowner.Contract law hasn't changed.

 

This point has been conceded by the BPA, this being the case and it most certaily is, then there surely needs to be a transparent fomula for calculation of loss as every case will will differ. To have it any other way the attendant's underpants and bacon butties will be considered as an expense by these companies

This may be a point that needs to be raised to the new appeals board.

 

On the point of appeals, I read yesterday that the BPA expect 1% of invoices issued to be challenged via the incoming procedure.

 

ARE THEY ABSOLUTELY POSITIVE ABOUT THIS CALCULATION ?

[Dublindel]

They are absolutely right with their calculation. That are using the BPA calclus system. 90k = 49-25=24.

[greasmonkey]

unless i havent read far enough through the law it appears the parking comp.

have to show how much they charge for what period of time

not what penalty you get for parking there so in fact would be running

a carpark instead of protecting the owners land from parking