Scotland; PCN/NTK after receiving "privacy notice" put on car

RandomName

nosferatu1001 wrote: »

Privacy notice? Id suggest a typo but you did it twice...

twhitehouse - no, thats not what that means. Its just saying that establishing keeper liability doesnt have anything to do with whether the vehicle was alowed to be parked there - it just sets out whether they can chase the keeper or not. You can then as keeper provide the usual defences.

It means they dont have to write legislation covering the sitatuion where the vehicle IS allowed to be there and where it ISNT.

The piece of paper that was put under the window wiper states 'privacy notice'. (replace X with t and you can see a photo)

hXXps://i.imgur.com/AeOaEqj.jpg
hXXps://i.imgur.com/8nWMg9b.jpg

Looking through the IPC code of practice I don't see any reference to this as a method of notifying the driver. Technically speaking no notice to driver was provided.

I will look through it more in depth tonight, I feel there are a few issues in how they have done things compared to the code of practice.

Castle

Umkomaas wrote: »

https://parliament.scot/S5_Bills/Transport%20(Scotland)%20Bill/SPBill33BS052019.pdf

I’m viewing this on an iPad and the relevant paras commence on page 97 (maybe you’re viewing on a PC/laptop) ....

However, it’s very early days in the implementation of this law, so we’ll need to see just how things play out. You’ll be one of the first who might be affected, so keep in touch with the forum.

I think it still needs royal assent to come into law

RandomName

Castle wrote: »

I think it still needs royal assent to come into law

Royal Assent is required for a bill to become an Act of the Scottish Parliament.
The monarch must give their consent for a bill to become a law. It is a final check in a constitutional monarchy that Parliament is doing a proper job in passing laws that will be suitable for the country. Nowadays, it is considered a formality, as the monarch very rarely withholds royal assent.

How does Royal Assent happen?
The day after the Bill is passed in the Scottish Parliament letters are sent to the law officers (Advocate General for Scotland, the Lord Advocate and the Attorney General) advising them of the four week period in which they can raise legal objection to the Bill.
If no objection is made by the law officers, or the four week period has passed, the Presiding Officer writes to Her Majesty The Queen enclosing the Bill and a Royal Warrant for signature – these are then delivered to Buckingham Palace.
When the Bill and Royal Warrant are returned to the Scottish Parliament, the Warrant is hand-stitched together.
The documents are then delivered to Registers of Scotland, followed by the National Records of Scotland, in Edinburgh, where the Great Seal of Scotland is applied.
Notices are then placed in the official journals of record: the London, Edinburgh and Belfast Gazettes signalling that Royal Assent has been given.

Looks like it is at least 4 weeks before it is law anyway.

Umkomaas

Castle wrote: »

I think it still needs royal assent to come into law

Excellent point Castle, I didn’t even think of that.

RandomName wrote: »

Looks like it is at least 4 weeks before it is law anyway.

Why on earth Scotland have gone down this route is beyond me. The Sheriff Court is going to be a very busy place!

Hasbeen

Umkomaas wrote: »

Why on earth Scotland have gone down this route is beyond me. The Sheriff Court is going to be a very busy place!

Because we have a minority government propped up by anti motorist green party.

OP at moment do nothing. Do not reply. Do not name driver. Put all letters in drawer and forget about it.

See if they want to make an issue about it.

Scotland has been protected as not under the same legislation as England etc, but the snp and greens are anti motorist. As shown by all the new taxes against the car driving public recently.:(

RandomName

For anyone interested, here is an email back from my MSP:

Thank you for your enquiry. Your constituent has had a parking charge notice issued by a private company. The letter states that the constituent is required to provide information as to who was driving the vehicle at the time. You have asked what the position is in relation to this with regard to the law in Scotland.

Your constituent also referred to the recently passed Transport (Scotland) Bill 2019 where it is stated that “The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.” You have asked when this is to take effect.

Private Car Parks - legislation

There is at present no specific legislation in force governing the operation, upkeep or use of private car parks in Scotland, which would mean that your constituent is not required by law to provide the name of the driver. Parking in a privately owned car parking area is generally governed by contract law and the rules about issuing these notices can be different to the rules about tickets issued by local authorities or the police. Anyone who parks in a private car park is deemed to have agreed to the terms and conditions of its use, which are normally posted on signs in the car park. The terms of use effectively form the terms of the contract between the car park owner and the vehicle owner. The enforcement of these terms and conditions are a matter for the car park owner, who may have delegated this responsibility to a parking enforcement company.

Many car park owners and their agents issue ‘civil penalty notices’ to vehicles parked in contravention of the car park terms of use. These notices request payment from the vehicle owner. These notices should not be confused with parking tickets issued by local authority parking attendants or police officers or traffic wardens for parking offences on public roads, which have a statutory basis. Failure to pay a “civil penalty notice” is not a statutory offence and a car park owner would be required to pursue court action to enforce payment. It is up to the car park owner whether or not to pursue such action, but they are within their legal right to do so.

In this regard, Citizens’ Advice Scotland says:
“If you get a ticket for parking on private land and you don’t think you should have to pay, you can decide not to pay and not to reply to the parking operator. The company may continue to send requests to pay and you could continue to ignore these.
Private parking operators could take you to court, but they may choose not to do this, as the amount of money being demanded is usually quite small.
Keep the ticket and any other paperwork or evidence.
If the parking operator does take you to court, you may be able to defend this, for example on the grounds that the signs in the car park were unclear.
A court may decide that you breached a contract with the parking operator and that you must pay the charges. You should remember that if it goes this far, you’ll probably face a higher charge than the one that was originally sent to you” – XXX.citizensadvice.org.uk/scotland/law-and-courts/parking-tickets/appealing-parking-tickets/parking-tickets-on-private-land-s/.

Other considerations
While there are no statutory standards for private car parks and parking companies, the British Parking Association (a membership body representing companies working in private parking) has produced a code of practice for its members. The code includes information on parking charges and can be accessed at the following link:
XXX.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2018.pdf

The UK Parliament passed the Parking (Code of Practice) Act 2019 - XXX.legislation.gov.uk/ukpga/2019/8/contents/enacted - in March which provides for the regulation of private car parks. The provisions of this Act apply to Scotland but as yet the code of practice still has to be drafted.

The DVLA also has authority to release information it holds on its databases to land owners and private parking companies, as set out in its ‘Release of information from DVLA’s registers’ document, which you can find at: hXXps://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/710366/inf266-release-of-information-from-dvlas-registers.pdf . This means that vehicle keeper records can be sent to parking companies which allows them to send demands to car owners.


Transport (Scotland) Bill 2019
Your constituent referred to the Transport (Scotland) Bill 2019. Section 58Z of the Bill says that the creditor has the right to recover any unpaid parking charges from the keeper of the vehicle and that this right applies only if the conditions in sections 58Z1(and other sections) are met. Section 58Z1 states:

“First condition: lack of knowledge of driver’s name and address
(1) The first condition for the purposes of section 58Z is that the creditor—
(a) has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges, but
(b) is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and an address at which the driver for the time being resides or can conveniently be contacted.
(2) Subsection (1)(b) ceases to apply if, at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given, the creditor begins proceedings to recover the unpaid parking charges from the keeper.”

However, while this new Bill contains provisions relating to the recovery of unpaid parking charges from the keeper of the vehicle the section is not in force yet and will be enacted on a day of the Scottish Ministers’ choosing. A copy of the Bill, as passed, is available at the following link - XXX.parliament.scot/S5_Bills/Transport%20(Scotland)%20Bill/SPBill33BS052019.pdf.


Further information
Citizens Advice Scotland’s webpage, available at the link provided above, on parking tickets on private land contains a great deal of useful information and includes links to two template letters your constituent could use if they wished to challenge a parking ticket.

1505grandad

Oh dear:-

"The terms of use effectively form the terms of the contract between the car park owner and the vehicle owner."

Gave up reading after that.

RandomName

1505grandad wrote: »

Oh dear:-

"The terms of use effectively form the terms of the contract between the car park owner and the vehicle owner."

Gave up reading after that.

I know, few bits of interest to me:

There is at present no specific legislation in force governing the operation, upkeep or use of private car parks in Scotland, which would mean that your constituent is not required by law to provide the name of the driver.

The UK Parliament passed the Parking (Code of Practice) Act 2019 - XXX.legislation.gov.uk/ukpga/2019/8/contents/enacted - in March which provides for the regulation of private car parks. The provisions of this Act apply to Scotland but as yet the code of practice still has to be drafted.

However, while this new Bill contains provisions relating to the recovery of unpaid parking charges from the keeper of the vehicle the section is not in force yet and will be enacted on a day of the Scottish Ministers’ choosing.

As it stands, there is no law, no code of conduct and the new law isn't in force, that is my take on it. But I expect a fair few cases to be put through the courts as soon as the law is in place.

Umkomaas

There is at present no specific legislation in force governing the operation, upkeep or use of private car parks in Scotland, which would mean that your constituent is not required by law to provide the name of the driver.

Correct. So now you must report this to the DVLA (as I advised earlier in the thread) that VCS is misrepresenting the law to a resident of Scotland, and your MSP has confirmed this in his/her letter to you (copy it to the DVLA) and tell them that unless they can provide you with a satisfactory response, you will be involving your MSP further and getting him/her to raise questions about why the DVLA have released your personal data to VCS who have subsequently used it unlawfully in an attempt to extort money.

The terms of use effectively form the terms of the contract between the car park owner and the vehicle owner.

Nope - wrong! The purported contract is between the car park owner and the driver. There is no legislation anywhere which includes the owner in this contract.

Many car park owners and their agents issue ‘civil penalty notices’ to vehicles parked in contravention of the car park terms of use.

Nope - wrong! Neither the car park owner nor their agents can issue ‘penalties’. They can issue an invoice, but that is a long way from a penalty. Only a statutory authority can issue penalties. PPCs are not statutory authorities.

RandomName

Have messaged the DVLA back, might send a reply to MSP stating your points. Cheers