Council sublet leisure carpark

LDast

To definitively determine the status of the land, we would need to closely examine the terms of the sublease agreement and any relevant statutory provisions or agreements between the council and the private company.

Under PoFA, the classification of land as "relevant land" is pivotal in determining the enforceability of parking charges. Specifically, PoFA 3(1)(b) excludes land that is "provided or controlled by a traffic authority" from being considered "relevant land."

Key Considerations:

1. Definition of "Provided":

   • The term "provided" in this context typically refers to land that a council makes available for a particular use. Even if the land is subleased to a private company, if the land was initially made available by the council for that purpose, it can be argued that the land is still "provided" by the council.

2. Council as a Traffic Authority:

   • Local councils often function as traffic authorities, which means they have statutory responsibilities related to traffic management and control.

3. Impact of Sublease:

   • When a council subleases land to a private company, the nature of the control and the statutory obligations retained or relinquished by the council must be examined.

Application to this scenario:

• If the Council Retains Statutory Control:

  • If the council retains any statutory responsibilities or powers related to the control of the car park (e.g., oversight of parking regulations, enforcement of parking penalties, or other statutory duties), the land remains under the control of the traffic authority. Thus, it would not be "relevant land" under PoFA, as it falls under the exclusion in Paragraph 3(1)(b).

• If the Private Company Exercises Full Control:

  • If the private company operates the car park with full control over parking terms, conditions, and enforcement without significant statutory oversight or control from the council, the land might be seen as being under the company's control rather than the council's. However, since the land was initially provided by the council and given the typical interpretation of "provided," it can still be argued that the land was "provided" by the council, thereby excluding it from being "relevant land" under PoFA."

    Key Considerations:

    1. Definition of "Provided":

       • The term "provided" in this context typically refers to land that a council makes available for a particular use. Even if the land is subleased to a private company, if the land was initially made available by the council for that purpose, it can be argued that the land is still "provided" by the council.

    2. Council as a Traffic Authority:

       • Local councils often function as traffic authorities, which means they have statutory responsibilities related to traffic management and control.

    3. Impact of Sublease:

       • When a council subleases land to a private company, the nature of the control and the statutory obligations retained or relinquished by the council must be examined.

    Application to this scenario:

    • If the Council Retains Statutory Control:

      • If the council retains any statutory responsibilities or powers related to the control of the car park (e.g., oversight of parking regulations, enforcement of parking penalties, or other statutory duties), the land remains under the control of the traffic authority. Thus, it would not be "relevant land" under PoFA, as it falls under the exclusion in Paragraph 3(1)(b).

    • If the Private Company Exercises Full Control:

      • If the private company operates the car park with full control over parking terms, conditions, and enforcement without significant statutory oversight or control from the council, the land might be seen as being under the company's control rather than the council's. However, since the land was initially provided by the council and given the typical interpretation of "provided," it can still be argued that the land was "provided" by the council, thereby excluding it from being "relevant land" under PoFA.

    Conclusion:

    Council-owned land subleased to a private company for operating a car park is generally still considered as land "provided" by the council. This interpretation aligns with PoFA 3(1)(b), which means such land cannot be classified as "relevant land." Therefore, even though the private company manages the car park, the land retains its exclusion from the "relevant land" category due to its provision by the council.
    
    

Coupon-mad

Makes sense, otherwise Councils could retain a false 'middleman' to sublease any off-street car parks where they want to use ANPR for parking enforcement.

Tazman1969

Thanks for your replies, I still think that it's not relevant land under PoFA 3(1)(b) but will have to do some more investigating to find out.
Found something for when the Leisure carpark was first built. 
Again any advice would be much appreciated...
https://www.google.co.uk/url?sa=t&source=web&rct=j&opi=89978449&url=https://tro.trafficpenaltytribunal.gov.uk/TRO/Cherwell/Spiceball-Leisure-orders.pdf&ved=2ahUKEwjgq-bZiZiGAxV0_7sIHZ07D444ChAWegQICRAB&usg=AOvVaw3iKTUOGLRMq6m-vnhRMSMj

Gr1pr

But bear in mind that Smart Parking do not use POFA 2012 anyway, so in that aspect it's a moot point , relevant or non relevant, they dont invoke it in their PCNs, its one of the first things we tell people, no keeper liability because they dont try to use POFA anyway . Anyone who receives a postal PCN can just appeal it as keeper using one of the not compliant with POFA templates seen on here

Coupon-mad

True.  Easy to beat Smart Parking anyway.

But OP please ask Cherwell Council if that Parking Places Order has ever been revoked, if so, when.  

LDast

I don't think the issue is whether any PCNs issued by Smart at this location are PoFA compliant or not. The question was whether they can use ANPR to issue PCNs in the first place.

That 2010 Order shows that (unless proven otherwise) the land is under statutory control. It is owned and provided by the council. Whilst they are free to contract an unregulated private parking company to manage the car park, the operator cannot just erect ANPR cameras and use them to inflict misery and financial pain on the public.

In fact, reading that Order, it would appear that only "Penalty Notices" can be issued and that they must be in the form of NtDs. As with APCOA and SABA, I cannot see (not so) Smart Parking running to apply for a Magistrates prosecution where they would not receive any money.

So far as off-street parking is concerned, the Secretary of State for Transport wrote to all English local authorities in September 2014 indicating that the Government opinion was that it was unlawful for local authorities to use CCTV/ANPR in public car parks and informed them that DVLA would not supply information in those circumstances. If the DVLA have been providing keeper data to Smart Parking for enforcement at this location, covered by an Off-Street Parking Places Order, then they have been breaching the GDPR of every keeper that has received an NtK.

The BPA have produced a guidance note for local authorities on when ANPR can and can't be used on land under statutory control (as this car park is).

You can download the PDF file from the link on this page:

https://www.park-active.co.uk/Resources/ANPR-in-local-authority-car-parks

Coupon-mad

Thanks @LDast - I'd never seen that BPA 'guidance'.

I suppose this one all depends upon whether that Off-Street Parking Places Order was ever actually revoked.

LDast

The previous one was replaced with the one we were shown. There is a possibility that that one has been superseded. The OP should ask the council. I would doubt that the council would revoke an order completely.

The point being, the land is still provided by the council which is what matters when it comes to reliance on PoFA. As for wether the use of ANPR is allowed, depends on the status of the Order.

Tazman1969

I have not let this go & be hoodwinked by the Council until it can be proven that they do not own the land, the parking conditions have been revoked and copy of the contract with their agents.

This has gone in as a stage 2 complaint with the Council, and also asked for the information above under the (FOI).

I have been looking for the correct contact for the DVLA to report this carpark non relevant land and investigation why they are providing owners details to Smart parking.

If anyone has the correct details please of the right department in the DVLA to put in the complaint would be much appreciated as I have looked all through their website. 

Many thanks 

KeithP

There's a section in the fifth post of the NEWBIES thread which discusses making complaints to the DVLA.
It includes these email addresses...
CCRT@dvla.gov.uk
KADOEservice.support@dvla.gov.uk
complaintsTeam@dvla.gov.uk