Damaged private carpark and landlord ignoring the problem

[Answers75]

This is a tricky post and I am unable to find any main bodies to give advice. A private carpark is owned by a large automotive supplies company. Over the years and because it is situated between two rivers that flood every year, this car park has increasingly eroded and heavily potholed.

 

It is accessed by some private working businesses and the company itself, has regular HGV drivers that delivery 40 ton parts of metal everyday to the company, which is the main contribution to the current state of the carpark. 

There is an added health and safety issue, because the HGV drivers have to reverse through the middle for about 30 yards between parked cars either side of them and because of the water filled deep potholes, almost turning one lorry onto it's side and potentially on to a parked car.

There is no lighting in the carpark, so during the winter months, especially now that the potholes and tarmac are so badly hazardous, if someone was to trip and fall, hurting themselves, who would be liable or could they have the right to claim for damages/ injury to themselves or their vehicle?

I understand that the other working businesses have emailed and spoken to the owners of the company and even agreed to go in with some of the cost of the whole carpark being resurfaced (approx £100,000 for complete work) but they have either been ignored or the company is not taking any ownership of the ever growing issue.

There was a discussion between the company and business owners that they were going to resurface it this summer, but they just went on their annual leave and it wasn't done.

I personally am very concerned, because I have to try and avoid the 'no mans land' area to park my car, as it's parked near where the worse of the damage is.

Does anyone know how we can approach this issue from a professional and formal angle now, as the civil and neighbourly way isn't being taken seriously and based on the details outlined, it will only get worse and worse, until I fear something or someone gets hurt, if the carpark isn't properly fixed soon.

Bearing in mind, this is not just a plot of private land with no public access, but an active carpark for the purpose of access to places of work and deliveries of heavy haulage, is there a legal responsibility under health and safety rules?

[BazzaS]

Do you pay to park there?

 

What would you do if they said they were withdrawing their permission for you to park on their private land?

 

(If you are claiming an easement you have the right to access, but that would bring responsibility to contribute to upkeep …..)

[stu007]

Are you asking this as an Employee working for one of said Businesses within that building/area or as one of the Business Owners?

 

What signage if any is displayed in the Car Park/Area?

 

 

[Answers75]

We are not employees of this company. They own the land but the other businesses on this land are independent (everyone is self employed) and own their buildings, which are places of work.

 

There is no signage because although it's privately owned, it is accessed by the public; delivery drivers, independent businesses etc...

 

Best way to picture this is probably like a site that has independent units on it, all privately owned, but everyone has to access the 'public carpark' that is the responsibility of the overall landlord. 

 

The landlord has employees who also use the carpark.

 

I am a tenant of one of the business owners.

 

We don't pay to park there, that I know of and as my post said, the businesses have offered to contribute to the cost of re-surfing, but the landlord gives me the impression, they don't want to sort it out.

 

They own other companies around the country and run a factory style form of employment, so fixing the carpark wouldn't be a priority to them as they don't work there or use it.

[unclebulgaria67]

Although it is privately owned land, if members of the public can access the land to say visit businesses, then I would think the local Council Authority may have procedures that could pressure the landlord into carrying out work for safety reasons. Can they serve notice on the landlord to carry out improvements on health & safety grounds ?

 

The lorry incident and all other accidents on the site should have been reported to the company responsible for the land so they were aware of health & safety issues.

 

This is the HSE list of who is responsible for H&S. I am guessing local authority as private land may come under their remit, if it accessible by public in their area.

 

Is HSE the correct enforcing authority for you?

WWW.HSE.GOV.UK

---

Authority - the type of workplaces HSE is responsible for and those where Local Authorities have responsibility.

 

 

 

[Answers75]

I will look at this information. Thanks. I asked the council and they said it's nothing to do with them and could not help or advise. 

 

The businesses have emailed and complained to the company, but with no reply or response. I think the emails go into spam, or may not be picked up by instruction or default. 

 

I'm trying to get advice on finding an authorised body like CAB or Resolver equivalent, that will look into something like this, if anything on a health and safety basis. I can't think of anyone. It's very frustrating. 

Edited October 31, 2021 by dx100uk
unnecessary previous post quote removed

[dx100uk]

just type no need to keep hitting quote

 

thread tidied

 

dx

[Answers75]

Ok thanks. Like this? Will do.

[unclebulgaria67]

Can you list the type of businesses that are located at the site.

 

Trying to identify which agency might be responsible. 

 

Please be aware that if the site is that unsafe, the businesses may have to close for a period, while the works are carried out.  For those people not on an employment contract, they may not get paid.

 

  Each business owner on the site is responsible for ensuring H&S standards and they need to report incidents.  If the site is unsafe and they continue to use it, they could be legally liable.

 

 

 

 

[BankFodder]

Is it possible to say that the businesses whose employees use the car park, have some kind of right to use it?

Is there any kind of ground rent? Surely the owners of the car park must be getting some kind of revenue from it. Surely they don't simply just own a piece of land of no interest to them and out of the very goodness of their heart and allow people to use it?

[BazzaS]

It is possible the users have an easement (so, right of access even if they don’t pay), either

by prescription (if agreed in writing), or

by right (through longstanding use)

 

However (& see my post #2) even if there is an easement, the right to park is accompanied by the responsibility to contribute towards upkeep

 

(The OP seems happy to contribute : are all the other users willing to contribute?)

[Answers75]

The businesses are ours, which is machinery, welding, a boutique type shop and mine is bespoke prototypes in one building. Next to us is boating repairs. Separate building. 

As regards to work being carried out and the resurfing, that's not a problem as we could park on the road for a few days, that wouldn't necessarily stop us from getting access. 

We are along a wall, which has parking directly outside and we could walk around right up to the edges of this wall, if needed. 

It is through the centre of this carpark where cars and vehicles drive, that is the biggest area of damage. 

This forum doesn't accept pictures, so can't give a good visual explanation. 

As regards to ground rent or revenue, that I don't know. It might be something the businesses pay annually or was paid at the beginning of purchasing the buildings as part of the sale, which might also include the use and divisions of the carpark and allocated spaces.

Contribution to resurface was collective amongst all businesses, but only the company can organise the works to be done and get it resurfaced. That's the bit ideally we would like getting actioned under responsibility, rather than enforced, if that makes sense. 

[FTMDave]

17 minutes ago, Answers75 said:

This forum doesn't accept pictures, so can't give a good visual explanation.

Yes it does.  Click on upload guide and follow the instructions.

[unclebulgaria67]

If the landlord is not making this a priority, if businesses have been keeping logs of H&S incidents on the site, caused by the poor condition of the grounds, then these should be sent to the landlord. Inform them that the businesses on site will have no option but to inform H&S authorities.

 

Given the mix of businesses on the site, with members of the public accessing it on a daily basis, I would suggest contacting the Council  again to ask them whether they have any H&S authority in regard to the site grounds.  If they say they are not the responsible body, ask them who to contact.

 

 

[BankFodder]

The question as to the basis upon which your company and others have access to this land is really the most fundamental issue.
This should be a starting point.

Once you understand this, we can then go ahead to derive the various rights that you might have to require a proper regime of maintenance of the parking area – and also the potential liabilities of the landowner in the event that there is an incident.
These rights might be written or implied – it doesn't matter - but you need to understand the basis of any legal relationship between yourselves and the landowner.

If you don't look at this first, then the rest of the discussion on this thread is purely speculative.

[Answers75]

I will try and find out from my landlord (he's probably been there the longest and his business was his fathers passed down to him along with the building) If we have written rights to access and park on the carpark. 

As for the council, they were adamant they couldn't help or advise further. A dead end with them unless I can get further information that would be of interest to them.

I have however sent my issue to HSE to ask for some advice. Their reply time is 21 days.

 

Having done a little investigation myself on this company via companies House, they have a charge on their business; a debt from the bank.

I don't know if this might be playing a part in the reluctance to sort out the carpark. 

[BazzaS]

Charge from a bank securing a bank loan is very common, and doesn’t mean the business is in trouble financially.

[Answers75]

Brief update. I spoke to my landlord today and the outer perimeter of the carpark, where our building is, that is owned solely by him, so we do not need to pay the company for parking directly outside our building, it is the greater inner area that belongs to the company. 

He also said that the company went into administration and had to be bailed out by another, so there are money issues, which is playing a part in all of this.

My option is to see what advice if any, comes back from HSE now.

[BankFodder]

Let's try and ask the question from a different direction.

If the owners of the car park simply closed it off, what action if any do the businesses who use the car park imagine that they might take?

Also, is it the only access to the businesses or are there other routes they can take to reach their premises?

How long have the businesses had access to this car park and have there ever been any issues in the past? Have the owners of the car park ever attempted to raise objections Or to impose conditions?

[Answers75]

Most of those questions I can't answer as I'm not one of the business owners and it's not really relevant to a potential health and safety issue. 

Based on the information I got today, I think the issue here is cost and so not on the company's priority list.

Sensibly, the carpark would be done in stages. Noone would object to a bit of inconvenience versus potholes damage to your car.

Resurfacing the carpark benefits them more than anyone else because they use it the most and their staff parks on most of it.

[BankFodder]

I think that you are getting ahead of yourself discussing the logistics of actually repairing the car park.

You have referred to HSE more than once. I'd be interested to know which particular provision of the relevant rules do consider gives the car park owner a responsibility to maintain the car park and which particular provision of the relevant rules gives the HS executive a duty to enquire and to enforce

[unclebulgaria67]

"There is an added health and safety issue, because the HGV drivers have to reverse through the middle for about 30 yards between parked cars either side of them and because of the water filled deep potholes, almost turning one lorry onto it's side and potentially on to a parked car."

 

Could the business owners potentially be liable, if they are operating from a site, which they believe may be unsafe ?   The OP in their example copied above, describes an accident, where the outcome could have been much worse.  

 

If the site is as unsafe as the OP is describing, the businesses need to take action, which could be to stop using the site or limit access to parts in a safe condition. Business managers have duties under H&S laws to carry out risk assessments and to reduce the risk. If there have been accidents on the site, these should have been recorded. This is where advice from H&S agencies could be valuable.

 

Normally these sites are managed by a company that represents the landlord. The business owners need to arrange a meeting with them to discuss responsibilities for carrying out essential repairs. This may not be that straightforward.

[BankFodder]

But are we confusing some issues here?

In respect of lorry drivers who use the car park for turning, there may well be an HSE issue between them and their employers. But this is not at all what we have been discussing.

What I have been reading here is that there might be an HSE issue between the car park owners and the businesses use the car park. In respect of that, I have asked what authority is being relied upon – and maybe we could even have a link to the authority.

Frankly I don't think there is any authority. I don't think that the Health and Safety Executive have any jurisdiction over the owners of land which happened to be used for parking and turning by cars and lorries – even if there is a contractual relationship.

So that we don't get distracted from the original question, I want to restate that as far as I can see we have the owner of land who for some reason rather is allowing vehicles to use that land for parking. The surface of the land apparently is very poor and people who decide to park there are risking their vehicles.
There may be some risk of injury as well – I'm not sure.

That is the issue as far as I understand it and the question is whether or how can the landowners be forced to put their land into a better state.

I've asked questions about the legal basis of the relationship – and there doesn't seem to be any legal basis.

I've asked what might happen then if the landowners simply seal off the land and prevent people going on to it – and I've had no reply.

I've asked whether there is some other access to the business premises which are normally reached through the car park – and I've had no reply.

If the bottom line is that the landowners are permitting the use of their land simply because they don't care or as an act of goodwill and if the people who are using the car park are simply using it out of convenience but in fact they could reach their business premises by other means even though they would have to park elsewhere, then it seems to me that the only rules that they can rely upon are those contained in the Occupiers Liability Act.

 

[Answers75]

Everyone needs to access the carpark in order you use their place of work. There is no other way to access the buildings.

As I have said, the outer perimeter belongs to the businesses, the inner area of the carpark belongs to the landlord. 

 

If the carpark needed to be resurfaced, the businesses can leave their cars parked on the road and walk into work, where the carpark is not yet resurfaced (it cannot and would not be completely done all at once)

 

Once the parking is full with cars parked in the outer areas, then it is difficult to drive through, because you would have to go the middle, to get out again where the most damage is (no mans land)

All the businesses want is the carpark to be resurfaced completely over a period of time if necessary.

It has been reported and discussed with the landlord and to date, no action to do so, has been made, even though the landlord said they would do it.

 

We cannot force him as individuals to resurface it, also I know nothing about parking rights, health and safety or any other official options. I don't even know if HSE can help either! So that's why I posted the message in the first place, if anyone on here knows or has any useful experience in a situation like this.

 

I thought all of this was clear in the first post. If not apologies. 

 

[BankFodder]

So you are saying that there is no street access to the businesses. They are closed off from the street and the only way even for pedestrians to get through to the business premises is through the car park. Is this correct?