Advice needed on Private Car Park fine

ManxRed

It probably is, although there may be some unimaginable reason why the charge actually IS a genuine pre-estimate of loss (although I'd like to see it!) in which case it would fall within the BPA guidelines. However I'm just using it as an example of the difference between contract and trespass.

TrickyWicky

Coupon-mad wrote: »

That's a good summary! :T

No it isn't. Read below.

ManxRed wrote: »

OK, maybe we're all getting confused here, let's see if I can summarise it.

Trespass = You can't park here (could be aimed at everyone or just certain members of the public, i.e. non permit holders).

Its a civil offence and you can seek damages in relation to Trespass, for example if I park a 4 x 4 on someone's lawn and the lawn gets churned up and needs relaying. The landowner can bring a claim against me for the cost of relaying the lawn. Or someone parks in my space in my block of flats and I then need to use a pay and display across the road. Again I could bring a claim for the cost of the P&D against the trespasser. However in most private parking trespass claims there are no damages caused, so the court might award nominal damages (usually a £1). Not really worth it. Also, ONLY the landowner can bring this claim. That's always been the case, pre POFA, and pre VCS v HMRC even.

While that is technically the case, PPCs don't and can't operate on the same civil trespass principle as local authorities. Local authorities have legal powers to enforce their PCNs under civil trespass law (road traffic act and traffic management act). They can register a debt for an unpaid PCN and send the bailiffs to see you. By default you are not permitted to park in council parking spaces unless you abide by the rules (buying a ticket, displaying a permit etc) otherwise you are trespassing and a PCN will be issued.

This is not the same for private parking. PPCs do not have the power to enforce civil trespass and are not catered for in the RTA or TMA. You are only trespassing on private land if you intentionally enter land that is closed by use of a barrier / sign that is designed to prevent you entering the premises / land.

Open land that has no barrier or sign to prevent you straying onto it can not see you being done for trespass. You might be taken to court for damage to property (as you mentioned yourself) but you won't be prosecuted for trespass. At least thats how its supposed to work but these days i think a lot of judges make it up as they go along and side with whoever has the most convincing story

Remember, walking down someones garden path when the gate was closed could theoretically see you get done as a trespasser yet the postman doesn't get sued and neither do the local pizza and kebab shops who keep shovelling ripe through the letter box with their contact details.

ManxRed wrote: »

Contract = Anyone can park here but you must abide by these terms.

There is nothing for me to argue here as you are correct. It's the trespass bit I wanted to clear up.

ManxRed wrote: »

PPCs are employed to manage both Trespass scenarios and Contract scenarios, (although they do fail to grasp the difference themselves) and for the reasons outlined above they would always struggle to make a claim for either. For Trespass, they can only advise the landowner to do it and even then its likely to be for a couple of pounds at best, and for Contract they have to be able to demonstrate that they had the necessary authority to form such a contract in the first place, which again they struggle with.

Having done my time with PPCs (although never issuing scam tickets I was exposed to their internal workings and documents) I can assure you that they don't operate under trespass or even try to. They know they don't have a leg to stand on with that. The only time they may have a slight case is under byelaws of some form and thats a very weak case after the HMRC tax tribunal OR if they legitimately have a closed off area where they find an intruder.

ManxRed

Sorry, but that is utter rubbish. Pretty much all of it.

esmerobbo

"but you won't be prosecuted for trespass".

Because you cant be except for certain areas but car parks ain't one of them!

TrickyWicky

ManxRed wrote: »

Sorry, but that is utter rubbish. Pretty much all of it.

Oh ok then.. slate the one who's dealt with all of this when you're just an armchair advisor with wannabe expertise.

You've even said about the damages part yourself and now I've pointed that out you're saying its rubbish.

Get real.

ManxRed

I'll answer it later, I'm in a meeting now. Not ALL of it is rubbish, just most of the Council Civil Trespass bit.

TrickyWicky

Oooh, look at me I'm in a meeting... ok.. that still don't impress me much :P

Like them or not, my comments still stand - all the more now you say not all of it is rubbish yet previously you said it pretty much all was.

Ooh hang on, I think the wind is about to change direction again

ManxRed

OK, so I foolishly thought it would be polite to let you know why I wouldn't be able to respond to you straight away. Thanks for accepting that in such a mature manner!

You are just clouding the issue by bringing council enforced parking into the debate. We all know that PPCs cannot operate under traffic legislation. We are talking about private land.

1. You can't be prosecuted for trespass in respect of car parks

2. The land doesn't need a barrier for you to trespass on it.

I agree that a PPC cannot enforce trespass, as I have said the best they can do is refer it back to the landowner to take action. But PPCs are repeatedly trying to issue tickets for trespass. On private business estates, multiple occupancy dwellings with communal car parks, it happens everywhere. Some have barriers, some have bollards, some don't. But we DO see PPCs trying to 'manage' parking where trespass, not contract, applies.

Your example of a postman on someone's drive is rubbish. Postmen and the like are assumed to have implied access unless such access is expressly removed by the landowner - in the case of a private car park, such access IS expressly removed by the displaying of signs saying 'no parking' or 'permit only'. Whether the gate is closed or not is immaterial.

PPCs do (whether they realise they are doing it or not) operate under trespass. Granted they will probably believe they are doing it under contract, but I suspect they are sadly mistaken. Who knows, some might understand the difference anyway, and just do it to make a fast buck out of the fools who pay up.

TrickyWicky

ManxRed wrote: »

OK, so I foolishly thought it would be polite to let you know why I wouldn't be able to respond to you straight away. Thanks for accepting that in such a mature manner!

You're welcome, especially after calling all of my post rubbish!

ManxRed wrote: »

PPCs do operate on a trespass basis, quite often.

ManxRed wrote: »

Trespass = some or all of the public cannot park here, full stop. This includes examples such as 'permit holder only', 'no parking', or even 'no return within X hours'. This does happen on private land, such as business parks where companies may have exclusive rights to certain spaces and only their own vehicles may park there. The 'no return within X hours' also happens on retail parks.

ManxRed wrote: »

1. You can't be prosecuted for trespass in respect of car parks

PPCs do (whether they realise they are doing it or not) operate under trespass. Granted they will probably believe they are doing it under contract, but I suspect they are sadly mistaken. Who knows, some might understand the difference anyway, and just do it to make a fast buck out of the fools who pay up.

ManxRed wrote: »

You are just clouding the issue by bringing council enforced parking into the debate. We all know that PPCs cannot operate under traffic legislation. We are talking about private land.

Look above, you're swinging from one side of the arguement to the other. One minute PPCs operate under trespass including on retail parks car parks, then they don't, they can't prosecute for trespass but they do operate under it.

I'm clouding the issue am I? :rotfl: :T

I think what you are trying to say (though not very clearly) is that they operate in a similar way to trespass where they permit you to use the land if conditions are met. Yes it is similar but not the same. You can't invite someone onto the land and then say they are trespassing (unless you're a council of course).

As for confusing the issue bringing councils into it, no I was not. They genuinely act under trespass law. PPCs can not.

ManxRed

Perhaps you need to understand the difference between 'prosecution' and 'civil claim'

http://en.wikipedia.org/wiki/Civil_procedure

Then you'll realise that I am not swinging from one side to another.

Quote me on where I called ALL of your post rubbish.

What I am trying to say is that PPC's operate under trespass, when quite likely, they don't even realise they are doing it (as amply demonstrated by your own posts), OR possibly they do, but are happy to pocket the money from the people who pay up but have no intention of bringing a claim because they know full well the position they are in.

So PPC's never try to operate under Trespass?
http://www.bailii.org/uk/cases/UKUT/TCC/2012/130b.pdf Paragraph 2, first sentence.

PPC ticket alleging trespass: http://i49.tinypic.com/jb5lxd.jpg

Excel v Alan Matthews (Excel thought it was contract, Judge ruled it was Trespass): http://forums.pepipoo.com/index.php?s=&showtopic=31031&view=findpost&p=359520

Postmen trespassing if the gate's shut? Councils enforcing trespass under legislation when we are discussing private land? You can use as many smileys as you like, you ARE clouding the issue.