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Debt Advice Handbook 14th edition

Private parking charges
Many private landowners, including retail parks and supermarkets, allow customer parking on their land subject to terms and conditions, and impose charges on motorists who contravene these terms and conditions. Many landowners employ and authorise agents to manage parking and enforce terms and conditions on the land in question (known as ‘car park operators’). Since 1 October 2012, it has been illegal to clamp or remove a motor vehicle without lawful authority – eg, by the police, a government agency or local authority.1s54 Protection of Freedoms Act 2012
Note: if a client has received a penalty charge notice from the local authority, see here.
Private landowners and car park operators cannot lawfully clamp or remove vehicles. Statutory byelaws relating to airports, ports and some railway car parks may lawfully authorise clamping and removing vehicles.
In most cases, private landowners and car park operators can only enforce parking conditions through:
    affixing a parking ticket to the vehicle containing details of the contravention, how much is due, any discount for prompt payment, how and to whom payment should be made, and details of the dispute resolution process;
    giving the ticket to the driver personally; or
    sending a ticket to the vehicle’s registered keeper.
 
1     s54 Protection of Freedoms Act 2012 »
The legal position
Section 56 and Schedule 4 of the Protection of Freedoms Act 2012 allow the landowner or the car park operator to pursue the registered keeper of a vehicle for unpaid parking charges if s/he either refuses or is unable to identify the driver of the vehicle at the time the parking charge was incurred. However, the registered keeper cannot be held liable if s/he identifies the driver of the vehicle at the time. If the registered keeper provides evidence which is acceptable to the landowner or car park operator (or, in the event of an appeal, to the adjudicator or the court) that the vehicle concerned was a stolen vehicle at the time of the parking contravention, the registered keeper cannot be held liable.
Special features
The registered keeper of a vehicle is only liable for unpaid parking charges if the driver:
    entered into a contract to park the vehicle on private land and has contravened its terms and conditions; or
    trespassed by parking the vehicle on private land where there were signs showing charges for unauthorised parking.
A driver who parks in a car park with clear signage setting out the terms and conditions of the parking facility will be deemed to have accepted these conditions and entered into a contract. The terms and conditions must be sufficiently displayed throughout the car park and particularly at all entrances. The charges payable for failing to comply must be clearly stated – eg, for not displaying a valid permit. The terms and conditions must not be unfair and the penalty charges payable should be proportionate. Caselaw indicates that the courts consider charges of up to £100 reasonable.1Parking Eye v Beavis [2015] UKSC 67; Vehicle Control Services v Mackie [2017] SC DUN 24 (decision of the Scottish Sheriff Court in Dundee)
If the landowner or car park operator is a member of an accredited trade association (the British Parking Association or the International Parking Community), it can ask the Driver and Licensing Vehicle Agency (DVLA) for details of the registered keeper on the grounds it has a ‘reasonable cause’ to seek that information in order to enforce unpaid parking charges.2Reg 27(1)(e) Road Vehicles (Registration and Licensing) Regulations 2002, No.2742 If a parking ticket was fixed to the vehicle at the time of the contravention or given to the driver, the landowner or car park operator must wait 28 days before seeking details of the registered keeper from the DVLA if there is no response to the parking ticket. If the contravention is detected remotely (eg, by cameras), the landowner or car park operator can apply immediately to the DVLA for the registered keeper’s details.
If a request is made by a body which is not a member of either of the above trade associations, the DVLA decides whether there is a ‘reasonable cause’ on a case-by-case basis.
Once the landowner or car park operator has the registered keeper’s details, it sends a notice to her/him for either payment or the driver’s details so it can pursue the unpaid parking charge. The registered keeper has 28 days from receipt of the notice to provide the driver’s details, pay the parking charge or appeal.
If the registered keeper fails to do any of these things, the landowner or car park operator may begin proceedings in the county court to recover the unpaid parking charge from her/him. If the registered keeper provides the driver’s details, the landowner or car park operator must pursue the driver since the registered keeper is no longer liable.
In the case of hire vehicles, the hire company must provide details of its contract with the hirer (which invariably makes the hirer liable for any parking charges) to the landowner or car park operator within 28 days of receiving the notice in order to avoid liability.
Parking tickets issued by members of a trade association must contain details of the arrangements for the resolution of disputes or complaints. Representations must be made in the first instance to the landowner or car park operator, who may decide to cancel the ticket or reduce the charges or reject the representations. If the registered keeper is not satisfied with the response, the landowner or car park operator must offer her/him access to an adjudicator at the Independent Appeals Service. The appeal must be submitted within 28 days of the notice of rejection (this time limit can be extended in exceptional circumstances). This process is free to the registered keeper. The whole process can be conducted online (although there are facilities for appeals to be conducted on paper by post). If the registered keeper’s appeal is successful, the landowner or car park operator must cancel the parking ticket. Note: Between 6 April and 31 July 2020, POPLA placed all appeals on hold due to the coronavirus outbreak (although clients were still required to submit appeals within the 28-day period), but POPLA resumed processing appeals on 1 August and is dealing with them in the order in which they were received.
Landowners or car park operators who are not members of an accredited trade association are not required to have an appeals process and so any disputes which cannot be resolved informally must be dealt with in the county court.
The Parking (Code of Practice) Act 2019 provides for a mandatory single code of practice for all private car park operators. The code is expected to include a new independent appeals service. At the time of writing, the code has not yet been published and there is currently no publication date. Operators who do not sign up to the code will still be able to issue parking charge notices, but will not have DVLA access, and so may have problems in enforcing them.
 
1     Parking Eye v Beavis [2015] UKSC 67; Vehicle Control Services v Mackie [2017] SC DUN 24 (decision of the Scottish Sheriff Court in Dundee) »
2     Reg 27(1)(e) Road Vehicles (Registration and Licensing) Regulations 2002, No.2742 »
Checklist for action
Advisers should take the following action.
    Check to see whether the landowner or car park operator is a member of an accredited trade association and, if so, check for compliance with its code of practice.
    Check whether the client has any grounds to make representations or to appeal (see popla.co.uk).
    Otherwise, assist the client to choose a strategy from Chapter 9, as this is a non-priority debt.