NMAG recognises that owners and managers of private land and car parks on private land must be able to control un-authorised use of that land by vehicle drivers.
Before private-land parking enforcement became its current growth industry with the arrival of recent technologies such as automatic number plate recognition (ANPR) this enforcement control typically involved barriers or car park attendants or both.
As the media has widely reported, parking control on private land too often has the appearance of being an unregulated ‘wild west’ operation sometimes administered by dubious operators who are running profitable businesses funded by the extortion of exorbitant charges demanded of un-suspecting drivers. Their business models seem to be based on obtaining a revenue stream from drivers who default or fail to comply instead of fees for the effective management of a piece of land being operated as a car park.
It is a matter of great concern that the absence of statutory regulation has led to the exploitation of motorists by some Private Parking Companies (PPCs) who ‘pass off’ their enforcement paperwork as ‘official’ documentation and imply that ‘penalty charges’ or ‘fines’ have been incurred, neither of which is possible.
These ‘parking charge notices’ are associated with speculative ‘parking contracts’ that fly in the face of consumer law. They often frighten consumers into paying the money demanded, especially when the notices include a threat of bailiff enforcement, the possibility of escalating costs and a threat of impaired credit ratings.
The Protection of Freedoms Act 2012 which, in respect of parking matters, came into force in October 2012 has banned vehicle clamping on private land but it has created:
- An increase in private land parking charge ticketing by former clamping companies
- The introduction of ‘keeper liability’
- The extensive release of keeper details by the DVLA to companies which have then often used improper coercive tactics to secure the demanded payments
- A failure of the legislators to have realised the implications of enabling vehicle owners (registered keepers) to be pursued by debt collection agencies
- The inadequacy in the legal inadequacy of mandating the collection of ‘parking charge’ payments without any statutory regulation of the enforcement process
Parking enforcement by local authorities is founded on statutory Regulations with levels of penalty charges, specification of parking signage, and appeal procedures all prescribed by the legal framework. Parking enforcement on private land is different; it is founded on contract law.
The 2012 Act introduces the bizarre situation of ‘keeper liability’ which means that the nominated keeper of a vehicle becomes liable for the contractual obligations of any third party person who was driving the vehicle at the time of parking. This means that, even though the registered keeper may not have been driving the vehicle or even present at the time of parking on private land, he/she can be pursued by commercial enforcement companies and debt-collection agencies for an act of which the keeper has no knowledge. This is wholly contrary to a fundamental principle of contract law that the terms of a contract apply to the parties to the contract.
In criminal matters, such as speeding, it is an offence to fail to provide the identity of the driver but only where the keeper is able to do so. A keeper is not liable if they do not identify the driver after having exercised ‘due diligence’ in an attempt to do so.
Penalty Charge Notices issued by local authorities under the Civil Parking Enforcement regime do hold the keeper liable but this is part of a statutory process which must be followed by the enforcement authority. That statutory process prescribes the wording and necessary procedures in relation to Penalty Charge Notices, Notices to Owners and other enforcement documents together the ability of being able to file a Statutory Declaration or Witness Statement if the authority is in breach of its statutory procedures.
The Protection of Freedoms Act does not incorporate such procedures, documentation specifications or checks and actually relies on a commercial trade association, the British Parking Association Ltd, to ‘regulate’ its own member companies together with an appeals service funded by member Private Parking Companies (PPCs).
NMAG believes that this ‘advisory’ appeals service POPLA (Parking On Private Land Appeals), whose decisions are not binding on the motorist, will degenerate into a shambles. This is because many of the ‘appeals’ are likely to arise and be subjectively decided from situations of driver confusion over parking signage and the parking rules in question when there are no statutory specifications for these things. This is wholly different from the local authority statutory regime which sets defined grounds and procedures for the making and processing of an appeal.
Further to that, some properly-behaving PPCs who are dismayed at the instances of some other BPA Ltd member companies who operate in disregard of BPA Ltd company rules and some who have convicted criminals in them, are contemplating the formation of a new rival trade association. NMAG finds it irrational and unacceptable for one commercial trade association, the BPA Ltd, to have authority in the enforcement process relating to parking on private land.
NMAG believes that ticketing on private land should be controlled and underpinned by statute. There are powers available within current legislation to regulate private land parking with the creation of traffic orders which could be enforced under the existing statutory scheme with its structured process and appeals service already in place.
Under such a scheme the following could be achieved:
- National signing standards and prescribed enforcement procedures.
- The use of the existing PATAS and/or TPT tribunals provide the appeals process.
- Access to vehicle keeper information held on the DVLA database to be available only under license via an accountable body such as the local authority and not merely via membership of the only current commercial Accredited Trade Association (the BPA Ltd).
- A national statutory penalty rather than the obtuse and arbitrary dressing up of a ‘parking charge’ as a calculation of loss of amenity/damages etc.
(Even the Government has blundered in its Impact Assessment: Proposal to Introduce Keeper Liability for Parking on Private Land when attempting to quantify any business case by stating “fines/penalties are not considered in economic appraisals.”
The Government should prescribe national standards and forms of sign and document wording for every PPC operation on private land. Current enforcement documents are often ‘passed off’ as being issued by an authority and often include intimidatory statements sometimes with a threatening tone.
‘Penalties’ & signage
Penalty demands are passed off by PPCs as ‘Parking Charges' which usually bear no relation whatsoever to an actual financial loss incurred by the landowner (which is a requirement under consumer law). The business model of the PPC operators is one of obtaining income from penalty payments and not from management of the car park.
The introduction of effective and unmistakeable statutorily-standardised parking signage would result in a significant reduction of income and profit to the enforcement contractor so it is not surprising to find industry resistance to such a proposal. The statutory objective of local authority parking enforcement is to maximise driver compliance with parking restrictions for the benefits of good traffic management; it is not to profit from penalty charge income.
Compliance with the BPA Ltd’s Code of Practice
Click here to see how one company operates to encourage the wrongful maximising of parking charge income. They say:
“And remember that you will receive £15 compensation for every paid ticket you issue. *Before purchasing any of the below you confirm to read and abide by the BPA code of practise. (sic)”
So, the operation is as good as a man in a fluorescent jacket with a book of pre-printed tickets and a company with unfettered electronic access to the DVLA database of all vehicle keepers. There can be no greater incentive for anyone to make hard cash and profit from sticking tickets on anyone’s car.
Another Private Parking Company states in the first paragraph of their commercial offer to private land owners:
“Being a member of the BPA also allows us unrestricted access to the DVLA's registered keepers database”.
They also stated on their website (now removed):
“Our Standard parking enforcement is totally free as we generate our revenue from the tickets we issue”.
(This admission is reported at paragraph 4.3 of a Parliamentary record as part of the Automobile Association's objections to the then-forthcoming 2012 Act).
Both of these companies are members of the BPA Ltd and the BPA Ltd’s Approved Operator Scheme with its voluntary Code of Conduct which is precisely that and open to abuse. Membership of the AOS allows any PPC automatic electronic access to the DVLA data base of registered keepers’ names and addresses (for just £2.50 a time).
The second of these PPCs even states on its website that, before the 2012 Act came into force, it was vehemently opposed to any prohibition of the lucrative clamping of parked vehicles.
Bearing in mind all of the unsatisfactory situation set out above, and that DVLA information is freely provided automatically to PPCs who are registered with the BPA Ltd's Approved Operator Scheme (the DVLA deeming every such request as having ‘reasonable cause’), the registered keeper will become liable for every parking charge received by post from these PPCs. This is regardless of who was driving the vehicle at the time of parking.
There are serious issues relating not only to data protection but also concerning a Government Agency (the DVLA) that supplies private companies with confidential vehicle keeper details to enable them to run their for-profit businesses.
Given that parking enforcement on private land is founded on contract law (or possibly trespass) the whole regime is fundamentally flawed:
- A principal feature of contract law is that only the parties to the contract can be held to its terms. How then can any third party (the registered keeper) ever be liable for some alleged breach of a contract of which they had no knowledge?
- If keepers are held liable, as is now the case under the 2012 Act, it means that a contract-based parking charge actually amounts to a punitive penalty or a fine for a failure to identify the vehicle driver at the relevant time. This is despite no private company having a power to levy any penalty or fine.
- Penalties are not possible in the terms of any contract so we are left with the perverse situation where a landowner (usually via the agent’s operating costs) must justify the financial ‘loss’ in the amount claimed by a parking charge.
The sickening excesses of the bailiff industry have long been reported in which excessive charges are levied by bailiffs (frequently contrary to law) with people having their vehicles removed, even in their absence, all in respect of a trivial PCN issued by a local authority. This happens even when the necessary enforcement documents had never even been received by the registered keeper to enable him/her to have acted on them. It also happens when the registered keeper had sold the vehicle before the parking incident occurred. In these cases the subsequent objectionable bailiff problems arises because of erroneous or incomplete data held by and provided by the DVLA the extent of which is alarming.
This intolerable situation regularly happens in statutorily-regulated enforcement by local authorities; therefore, enabling an unregulated and unwarranted debt collection process loose on the motoring public in respect of private land parking with its absence of checks, balances and scrutiny will inevitably result in extensive injustices and malpractice.
See also DVLA section
Constitutional & legal anomaly
NMAG believes that this major issue will be brought before the courts because, in passing this present fiasco into law, Parliament has created a constitutional anomaly by mandating the collection of unpaid private parking charge invoices against unwitting parties in the absence of any statutory structure to regulate the enforcement process.
In respect of private land parking the Protection of Freedoms Act 2012 will have the opposite effect by enabling ‘keepers’ to be pursued for charges that they have no legal right to challenge.
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