Letter to MP regarding parking companies

Malovern

Here is a letter I have sent to my MP regarding the legality of these parking companies. I will post her reply (if any).

Thought I would share it.

Mal.

Dear Margot James,

I am writing to you with concern over the way the government seems to have completely overlooked the legality of private parking companies ability to recover so called "parking charges" (in reality speculative invoices) from drivers for so called breaches of parking conditions. In particular with the recent release of the Protection of Freedoms Act 2012.

Firstly, a little background. Private land parking issues are an issue of civil contract law directly with the landowners. Only the landowner and not an agent of the landowner, can recover losses relating to a presumed contract between a driver and the landowner. In addition, only genuine pre estimate of losses incurred can attempted to be recovered and should not attempt to penalise the driver. This section falls under the Unfair Terms in Consumer Contracts Regulations 1999. This has been affirmed in the case detailed below and is now a binding decision.

In our area, the Merry Hill has its parking controlled by UKPC, a company which, as a member of the approved operators scheme of the BPA (British Parking Association) has access to the DVLA's database via electronic link. To maintain this link, the operator must comply with the BPA's own guidelines but as we are frequently seeing, the BPA is a trade body for the interests of its paying members, i.e. the parking companies and not the general public and as such is completely disinterested to the point of ignoring people who contact them regarding their members and points of law - more on that in a moment.

The UKPC company deliberately breaks the BPA's own code of practice (as detailed below) and therefore the DVLA's own guidelines on "reasonable release" to obtain registered keeper details but contacting the DVLA on this has resulted in silence. The fact that the DVLA has a material interest in maintaining these electronic links due to the fact that each request earns them £2.50 seems to be why and is concerning to say the least for a public body funded by the taxpayer.

In the BPA's Code of Practice:

Section 14.1 - 14.3
"You must not misrepresent to the public that the parking control and enforcement work you are doing is carried out under the statutory powers of the police or some other public authority"

But on the UKPC's own website:

<Newbie : cannot post links>

"The Protection of Freedoms Act 2012 came into force on 1st October 2012.
It gives statutory authority to private parking companies, such as UK Parking Control Ltd, to obtain payment of a parking charge from the driver of a vehicle who breached our terms and conditions of parking. If we are not notified by the registered keeper of the name and address of the driver (within 28 days of requesting that information) the registered keeper must pay the parking charge."

Clearly showing that they are attempting to mislead the public into believing that they have statutory authority which they do not.

On the point of law, and which I believe the PoF Act conveniently overlooks, in the court ruling VC v HMRC, the court made a distinct and binding ruling that only the landowner and not agents of the landowner can form a contract with the driver of a vehicle. In a previous response from the DVLA to a poster on the pepipoo.com website (motoring advice site), the DVLA responded with the following:

"We would refer you to paragraph 46 of the Judgement “VCS is permitted under the contract [with the landowner] to collect and retain all fees and charges from parking enforcement action”. As you are aware, membership of AOS requires the parking company to have clear authorisation from the landowner (if the parking company itself is not the landowner) that sets out their role in relation to the parking control and enforcement. As such, DVLA is entitled to determine that they have reasonable cause to see the data under regulation 27(1) (e) of the Regulations."

Clearly this statement is incorrect - regardless of any contract between the parking company and the landowner, unless the parking company has a vested interest in the land in question, they have no contract or indeed any claim to form a contract with a driver of a vehicle who park on the landowners land. This is clearly stated in the court decision in VCS v HMRC. As this is a binding decision on lower courts, I believe the DVLA is acting at best improperly, and at worst illegally releasing Data Protection controlled information to companies who the DVLA know are not legally entitled to such information.

This is one of the main reasons I believe that parking companies do not take people to court over these so called "charges" - they realize they are in effect breaking the law but no one seems to want to do anything about it. In fact, UKPC have NEVER taken anyone to court over so called unpaid parking "charges" as identified in a FOI request to the Department of Justice as they know full well they would lose on the grounds above.

Also worrying is the new POPLA appeals service people can appeal to. It seems its impartiality is seriously undermined when you look at the extremely narrow grounds of appeal you can make:

<Newbie : cannot post links>

The grounds under which you can appeal the parking charge notice are as follows:

* The vehicle was not improperly parked: e.g. that the vehicle was not parked where stated on the parking charge notice; that you believe you were still within the time you paid for; that the voucher was clearly displayed or that the conditions were not properly signed.
* The parking charge (ticket) exceeded the appropriate amount: e.g. that you are being asked to pay the wrong amount for the parking charge or that the charge has already been paid.
* The vehicle was stolen: e.g. that the vehicle was improperly parked after being stolen. However, the fact that someone else was driving your vehicle, for example a family member, friend or colleague, is not in itself a valid ground of appeal. The fact that you told the driver that they could only use your vehicle on condition they did not get any parking tickets is not a valid ground of appeal.
* I am not liable for the parking charge: e.g. that you had sold the vehicle before, or bought it after, the alleged improper parking. However, the fact that you had paid to park the vehicle in the first place (even if, for example, the voucher was not clearly displayed) is not in itself a valid ground of appeal.

This makes no reference whatsoever (deliberately?) to the above details on landowner / driver contract law, excessive charge, right to form a contract etc. It is as if the entire industry, POPLA, DVLA and the BPA are all conveniently overlooking the facts.

My questions therefore are :

Why are the government knowingly allowing this to continue?

How are the DVLA still allowed to release registered keepers details to private parking companies who have no legal right to form a contract with a driver and therefore cannot claim as such?

Why is the DVLA conveniently overlooking the precedent set on this in VCS v HMRC?

Why, in the PoF Act, is a private parking company allowed to pursue a so called debt against the registered keeper of a vehicle when, a contract can only be formed between the driver of that vehicle and the landowner directly and not their agent? Surely the decision above is also binding on the government?

I have also raised this with the ICO but to date again, no answer has been received.

In closing, just for your information, I have never received a “parking charge” from a private company but I have a disabled friend who did and was so incensed by this and the letters harassing the registered keeper (this occurred prior to the 1st October and as such the PoF Act) I felt compelled to act. Her “crime”? forgetting to display her disability badge regardless of the fact again conveniently overlooked, is that the blue badge scheme is not enforceable on private land. I have advised her not to pay the “charge” (£140 and rising) and I actually would welcome the chance for UKPC to take her to court so I could represent her but I guarantee you they will not.

Thanks and Regards

Some reference cases which bear relevance to certain points raised:

<Newbie : cannot post links>

The actual case:

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VCS v HMRC:

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An interesting reply to a “parking charge” by a barrister:

<Newbie : cannot post links>

grandmastashi

Great letter. Hope you get a response!

This makes me wonder if a more standardized version of this was produced, whether a letter writing campaign to MPs to take a look at the issue would illicit any great response.

The Fair Fuel Campaign started in the same manner and that has gone from strength to strength.

Malovern

Finally got a reply:

Thank you for your email regarding private parking companies.

I do appreciate your concern. You raise some specific legal points relating to private parking companies, parking fines and appeals, so I will write to the Transport Minister responsible for this area, Norman Baker MP, on your behalf to ask what action the Government is taking in this area. I will, of course, let you know of any response I receive.

More generally, you mention the Protection of Freedoms Act which makes the registered keeper liable to be pursued for unpaid parking fines. I would like to reassure you that strict safeguards are in place to protect against misuse of the scheme.

The Government has banned wheel clamping in England and Wales without lawful authority from 1 October. Private parking companies therefore have to enforce parking on private land through ticketing. To allow them to do so effectively, the Government has broadened the ability of landowners who use parking control companies to pursue the keeper of the vehicle for unpaid fines.

Private parking companies who wish to receive information from the DVLA about the registered keeper of a vehicle must be a member of a DVLA accredited trade association and abide by its code of practice. This code sets conditions including maximum fine levels. It makes sure that drivers are treated fairly when parking on private land and that a complaints procedure is in place if they feel they have been treated unjustly. If a company does not abide by the code it risks losing its accreditation and will be unable to access information electronically from the DVLA.

In addition, the British Parking Association has established an independent process for challenging tickets issued for parking on private land to coincide with the introduction of this Act. The appeals body is a free service to motorists.

Thank you again for getting in touch. I hope this information is useful, and I will pass on any further information I receive from the Department of Transport.

It appears that my MP is also clueless on PPC's so to further educate her I added the following letter:

Dear Mrs James,

Thank you for your reply.

Unfortunately, as previously stated, private parking companies have no legal right to pursue a debt against a person unless they are owners of the land in question. If you think about it this makes perfect sense otherwise you would have ridiculous situations where I for instance, could sue you for overstaying in say Tesco's car park even though I do not own or have any financial interest in the land. Sounds daft but that is exactly what is happening now with these private parking companies.

You also mention "fines". The only bodies that can fine someone is a statutory body such as a court or the police. Private parking companies cannot, and have no legal statute to fine members of the public or issue penalties. As any private parking issue is a subject of civil contract law, the contract is said to be formed when you park, this is between the landowner and the driver and not the parking company. The landowner and not the contracted parking company can only sue me for pre-estimated loss ie for instance if I overstay in a pay and display car that is £1 an hour and I overstay an extra hour then the pre-estimated loss is £1. Anything over and above this has been proven before to be a penalty and therefore not enforceable under The Unfair Terms in Consumer Contracts Regulations 1999. This is why you will find that private parking companies will send letter after letter of bluster in an effort to make you pay but will very rarely take you to court for fear of losing on the above grounds. The parking company UKPC who manage the Merry Hill for instance, has never taken anyone to court.

Finally, the POPLA appeals service you mention was contracted out to London councils BY the BPA who are solely there for their own members benefit - as they pay the BPA - so how can this be independent?

I fear you do not fully understand the problem here, you are essentially allowing private individuals (read parking companies) to issue demands for monies where they have no legal power to do so. I recommend you read the transcript from the court from VCS v Ibbotson on this point as the judge made it perfectly clear to the company VCS and the solicitor acting for VCS that they were on extremely shaky legal ground.

I look forward to hearing back from you with regard to the legalities of this.

Lets see what happens now. Still no response from either the DVLA or the ICO yet, but here is hoping.

Paperbird

I copied this from another site that shows just how " independent " London councils is.


"In respect of of my complaint about the length of time taken to respond to my request to POPLA, I am told that I can instigate a Stage 2 complaint, which will be investigated by London Council's service directorate's Director, Nick Lester. Since Mr Lester is a member of the BPA council, which also contains representatives from several Private Parking Companies, I do not understand how he can 'manage' POPLA which claims to be "independent of all parties to appeals, including the operator and the British Parking Association"."

Stroma

Very nice, glad someone is doing this so eloquently

Cornucopia

It looks like another case where the law has been allowed to develop (by Government) in contradictory directions, and with a lack of forethought as to the opportunities for PPCs to behave in an underhand way.

As law enforcement is more and more the work of private contractors, I suspect this will get worse.

Well done for taking the matter on.

However, I suspect that it may ultimately come down to an asinine resolution - which is that PPCs can do what they do, and can misrepresent themselves as much as they like (because their claims have no legal weight or legal constraints). DVLA will not act because they are blind to individual complaints, and the "fines" will remain ultimately unenforceable.

What a mess!

ManxRed

These things always end up with a templated fob off letter from Norman Baker.

The_Slithy_Tove

I do appreciate your concern. You raise some specific legal points relating to private parking companies, parking fines and appeals, so I will write to the Transport Minister responsible for this area, Norman Baker MP, on your behalf to ask what action the Government is taking in this area. I will, of course, let you know of any response I receive.

Don't expect anything meaningful or useful from Mr Baker. When the POFA was going through many of us wrote to our MPs, and the letters were forwarded to Mr Baker, who then sent back template letters, i.e. everyone got the same response, which failed to address any of the points made. No doubt he will continue to obfuscate and avoid direct questions. He's a waste of space.

Cornucopia

Perhaps there is a need for direct action?

Do any of the PPCs have private car parks we can park in?

ManxRed

Don't mention the Goldstone Ground to Coupon-Mad or SodG24!!

spacey2012

You can see why the country is in such a mess when we have utterly clueless MP's like this running things.
Not even a "basic" understanding of the Law.
Yet these are the people voting and introducing new Laws.
Explains a lot this does.