Parking on private land from October 2012 legislation

[greasmonkey]

and most of the wording of the act refers to parking charges i thought the

act was to protect private land from parking not let them make a living out of it

[DBC]

What is a "parking charge"? Is it the fee you pay to park, or the money demanded by PPCs when you break their rules?

[Crocdoc]

At the end of the day, who they try and hold liable whether it be the owner or the driver it does not alter the following.

 

Where a ticket has been issued under the law of contract to a vehicle which although allowed to park on the land, is in breach of the conditions relating to parking, the recipient can argue that the charge being demanded is so high that it amounts to a penalty and is therefore unlawful under the Unfair Terms in Consumer Contracts Regulations 1999.

 

What the regulations state

 

A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.

 

A term shall always be regarded as not having been individually negotiated when it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

The previous paragraphs are also supported by the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract

 

There is also an English Judgement very similar to the one above, I just cannot remember off hand the full details.

It is also interesting to note a BPA statement regarding the above.

Parking charges issued under the law of contract must be reasonable and not excessive, and must be a genuine pre estimate of loss to reflect the operators costs in running their parking operation. The charges can be recouped in two ways – as a breach of a contract term (where a driver has parked incorrectly across two marked bays for example), or as an agreed charge as a part of a tariff (for overstaying in a free car park for example). If those charges are considered to be excessive in a court of law, they will be judged to be a penalty and will not be upheld.

[zydeco]

The change in the law from the 1st. October made it illegal to clamp a vehicle on private land. That's it.

 

If the owner of the land, (or the operator with written authority) is a member of the BPA then they can access the keeper details from the DVLA and can issue a Parking Charge Notice.

 

Of course this doesn't alter the fact that these PCNs are unenforceable at law as the only claim they can make is a civil one for loss/damages, ie the loss of parking fees for the time your vehicle was parked on their land or in the case of free car parks, nothing..

 

This only applies to private land, council car parks or land makes it a Penalty Charge Notice which can be enforced through the courts.

 

The best thing about this change in the legislation I think is the fact that if you are clamped on private land you can quite happily cut the clamp off and tell the clamper to go whistle.

 

As has been already said on this thread, the media seem to think that Parking Charge Notices are 'fines' which of course they are not but when that bastion of Britishness, the BBC continue to perpetuate this fiction it is difficult to dissuade people from the belief that they have committed a "crime'' and so must pay the penalty.

[Surfer01]

From another forum;

 

If you refuse to name the driver they can't do much about it. This is part of the reply I received from Transport Minister Norman Baker:- The alternative option was to make it a criminal offence for the keeper to refuse to name the driver in charge of the vehicle. This was discarded because criminal sanctions were deemed a disproportionate sanction to a parking charge on private property.

The driver or registered keeper can still ignore them, nothing has changed with the law in respect of the unenforceability of these charges. The wording of the Act is actually that the PPC can 'invite' the keeper to name the driver.

If the PPC does not know the identity of the driver then they can hold the RK liable. However, if they do know the driver's details (and the RK will be invited to furnish them with this info) then the RK is no longer liable and will not be from there on in.

 

The tickets themselves are still unenforceable contract penalties, and the PPCs still won't have (in the majority of cases) sufficient landowner rights to form contracts with anyone. So no change there.

Edited October 6, 2012 by ims21

[Old Cogger]

BBC oh yes British Broadcasting Corporation = non profit making as have recourse to Public Funds to use to operate from the so called licence fee, so Non Profit Organisation, mmmmm heard that somewhere before??

 

No advertising = shock horror BBC World News from Signgapore etc (No that was not an advert - must of been a very large fly on the screen), 50% in Jeremy programme they just bought the other 50%? ?? and it goes on and on??

[Crocdoc]

Have the BPA or their members any idea of the number of people who travel from Outer Mongolia, borrow a car from a pal and shop at Lidl's

[Old Cogger]

Have the BPA or their members any idea of the number of people who travel from Outer Mongolia, borrow a car from a pal and shop at Lidl's

 

 

 

NN oooooooooo they cannot count, or know where that is, north of the Watford Gap they would say no doubt.

[laynaxxx]

Hiya, I run a pub with a very small car park right next to a busy hospital & I am really confused about my rights on how to stop the hospital visitors from parking in the pub car park, as they take up the few parking spaces meant for my customers. My business is a dying trade & every month I struggle to make ends meet, so I need to be able to keep those spaces clear for my genuine customers. I have notices displayed saying clamping in operation but as I have never actually carried out the threat they have little effect. I am now worried that the new clamping laws will give them an open invitation to completely abuse the use of a free cark park. I am aware the hospital charges an obscene amount to park in the grounds so I understand why people will try to avoid paying & take a risk on parking in my car park but I simply cannot afford to lose any more customers. I am not totally heartless & if someone is polite enough to pop in & ask if it’s ok to park I do allow them to park there for a short time as long as they put a small donation in a local charity box displayed on the bar. It’s the ones that park there all day without asking or attempting to pop into the pub to purchase anything that I need to be able to stop. Please can someone explain what my rights are rights on stopping them from doing this in the future?

[T25]

What is the law regarding signage?I notice that the old signage saying vehicles will be clamped is still in place at many sites.Should this not now be removed?

[greasmonkey]

any part of the sign that is wrong makes all the sign wrong

[DBC]

The BPA have given their members six months to remove "mixed signs", that is signs that mention both parking charge notices and clamping. Those that only mention clamping have to be removed immediately.

[Nev Met]

The BPA have given their members six months to remove "mixed signs", that is signs that mention both parking charge notices and clamping. Those that only mention clamping have to be removed immediately.

 

Does anyone know under what legal authority the British Parking Association Limited has acted to grant these dispensations to it's members against any potential liability for criminal offences under the CPFUTRs 2008

[firstclassx]

Does anyone know under what legal authority the British Parking Association Limited has acted to grant these dispensations to it's members against any potential liability for criminal offences under the CPFUTRs 2008

 

They don't need any authority IMO.

 

It is not an offence to have a sign saying clamping is in operation. It only becomes an offence if a car is actually clamped.

 

It is also important to remember that clamping is not banned as some people believe, just heavily restricted.

 

You can still be clamped or have the vehicle forcefully removed at a railway station, for example, as per Byelaw 14(4) or the DVLA can clamp for no tax etc.

[greasmonkey]

the bpa cant and the sign have to be clear

[T25]

They don't need any authority IMO.

 

It is not an offence to have a sign saying clamping is in operation. It only becomes an offence if a car is actually clamped.

 

It is also important to remember that clamping is not banned as some people believe, just heavily restricted.

 

You can still be clamped or have the vehicle forcefully removed at a railway station, for example, as per Byelaw 14(4) or the DVLA can clamp for no tax etc.

 

So this means the clampers do not have to remove the signage then?

[firstclassx]

So this means the clampers do not have to remove the signage then?

 

Not by law. They can still have a massive YOU WILL BE CLAMPED sign up if they wish. Some probably will keep them up deliberately to dissuade motorists who don't know any better.

 

I suppose a body like the BPA could impose their own "penalties" or instructions to members who don't have clear signage though, although these are completely internal and not legally binding/enforceable, if indeed the BPA have any such rules in the first place. Non-BPA members can do what they want, as long as they don't clamp illegally.

 

As long as they don't clamp a vehicle (when not permitted to, legally), signage is pretty irrelevant.

 

Moving away from the above, I have spoken to a few colleagues and we are of the opinion that it could still be a criminal offence for the MOTORIST to remove a clamp (by damaging it), even if it is unlawfully attached as per Section 1 - Criminal Damage Act 1971. "Lawful excuse" may be a very difficult defence to run with.

 

SO, top tip! Don't remove the clamp. Get a few photographs of it on your phone etc, call police (not 999 though, call 101 or whatever number your area uses) and wait. Don't even try and touch the clamp, you could contaminate it if the police get it forensically tested.

 

After clamper is convicted, issue a MCOL against them, citing losses arising from distress/inability to use vehicle. A magistrate may be able to award compensation via a separate order as part of sentencing.

Edited October 3, 2012 by firstclassx

[Surfer01]

If your vehicle is parked up on Housing Association land and it has a SORN, can the Housing Association still have the vehicle towed away? Previously the council would have been able to do this.

[Michael Browne]

I suppose a body like the BPA could impose their own "penalties" or instructions to members who don't have clear signage though, although these are completely internal and not legally binding/enforceable, if indeed the BPA have any such rules in the first place. Non-BPA members can do what they want, as long as they don't clamp illegally.

 

.

Complaining to the BPA would be pointless, but if they are a member a complaint to the DVLA could be more fruitful, since they can deny access to their data as has happened twice recently

[firstclassx]

If your vehicle is parked up on Housing Association land and it has a SORN, can the Housing Association still have the vehicle towed away? Previously the council would have been able to do this.

 

Surely if the vehicle is now on private land, regardless of the previous owner, it is an offence to remove the vehicle.

[crem]

SO, top tip! Don't remove the clamp. Get a few photographs of it on your phone .

 

Why would they have clamped his phone??

[Sillywizard]

Hiya, I run a pub with a very small car park right next to a busy hospital & I am really confused about my rights on how to stop the hospital visitors from parking in the pub car park, as they take up the few parking spaces meant for my customers. My business is a dying trade & every month I struggle to make ends meet, so I need to be able to keep those spaces clear for my genuine customers. I have notices displayed saying clamping in operation but as I have never actually carried out the threat they have little effect. I am now worried that the new clamping laws will give them an open invitation to completely abuse the use of a free cark park. I am aware the hospital charges an obscene amount to park in the grounds so I understand why people will try to avoid paying & take a risk on parking in my car park but I simply cannot afford to lose any more customers. I am not totally heartless & if someone is polite enough to pop in & ask if it’s ok to park I do allow them to park there for a short time as long as they put a small donation in a local charity box displayed on the bar. It’s the ones that park there all day without asking or attempting to pop into the pub to purchase anything that I need to be able to stop. Please can someone explain what my rights are rights on stopping them from doing this in the future?

 

Yours is a point of view which is (regrettably) overlooked and I have every sympathy with your desire to retain your land for your own use, something which I and people like me tend to forget when we're being hustled by private parking companies.

 

I think that your approach is required to be necessarily diplomatic but do think that you may have to consider whether you can afford some form of exit control for your premises.

 

It's regrettable that, in asserting our rights, we sometimes overlook our responsibilities and I hope that someone has a practical answer to your reasonable question.

[sploits]

Why would they have clamped his phone??

 

Ha I like your style crem

[DBC]

On the question of what is a genuine "pre-estimate of loss" , this was received by a poster on another forum:-

 

"The OFT expressed the view to the BPA that when claiming liquidated damages, they must meet the requirement of being a genuine pre-estimate of loss. If back office functions are claimed, these must be directly caused by the breaches of contract. The OFT's view was that, if you have an office anyway and have to pay rent, rates, insurance, etc. this cannot be attributed to the breach and claimed as costs, as these are costs of running a parking management company. To be recoverable, all costs, whether in contract or tort, must be caused by the breach."

 

So in reality most PPCs would be stuffed as there wouldn't be enough money from "parking charge notices" to make a profit, especially as they usually offer their services for free to the landowner.

[Spec1]

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.

 

Hi Old Snowy

 

The reason the DVLA will continue to give information to the owner of land is they are not a PPC, and if the landowner were refused access to that informtion, the DVLA would no only be depriving the landowner from being able to have a remedy against interference of their land, the DVLA are edgy about litigation from powerful landowners who want to retain control over their land.

 

Another interesting subject i wanted to discuss with you again is the issue of damage. Let me ask you your thoughts about this sinaro, if the landowner paid the PCC For their actions carried out against the trespasser, and the contract between the PCC and the landowner was clear the landowner would suffer a loss under this contract, if is was not a sham and the paper trail was clear, would this not be genuine quantifiable damage which could be recovered at Court ?.