Council sublet leisure carpark

Castle

At at 11th November 2021 the Parking Places Order is still in place:-
Civil parking enforcement - off street parking (Cherwell) | Civil parking enforcement - off street parking (Cherwell) | Cherwell District Council

Tazman1969

Thanks Castle for this, so basically this carpark is still under Council control & is not relevant land? 

Gr1pr

With or without that order, its never relevant land under POFA if the council own it 

If the order was revoked and the council are the landowner and leased it out, they still own it 

If the order was revoked and the land sold to a private company, then it becomes relevant land under POFA 

When Smart parking were appointed, they are enforcing on the land under the 6 months plus one month rule, because Smart parking are not trying to invoke POFA, they never have done. So those who received PCNs were not pursued under POFA, they were pursued under the KADOE contract ( nothing to do with POFA. ) lets call it a non POFA pcn invoice 

There are several issues in play here, especially those legal council orders, which are either in force or revoked 

Then there is the lease to the fitness company 

Then there are the Smart parking invoices to keepers , where keepers have no legal liability because Smart don't try to play the POFA card anyway. Some of those PCNs may have been paid, some people may have appealed and blabbed about driving 

The last issue is regarding enforcement, can Smart win in courts and enforce the PCNs already issued that were contested or not paid. ?

Umkomaas

I think the main issue here is the use of ANPR on a council owned car park.

Tazman1969

Umkomaas said:

I think the main issue here is the use of ANPR on a council owned car park.

Thanks again, I am still waiting for my reply from the Council, but certainly the land still belongs to them 100%.
So why are the DVLA giving details to Smart parking regardless if under KADOE or POFA it's non relevant land and Smart parking are well aware of that (when they do their due diligence checks)  🤣.
If any unregulated parking operator can set up anywhere they want regardless of relevant land etc and request drivers details from the DVLA under KADOE and get then, I am sure they would run more wild then they do now....🤷

Gr1pr

The KADOE electronic link allows private parking companies throughout the whole of the UK to access the DVLA database on all land, especially private land, the issue of whether its relevant or non relevant land isnt a factor as such 

They obtain DVLA data daily on various non relevant land, such as airports, ports, railway land like stations , tramlines such as Metrolink , anywhere in Scotland and Northern Ireland where POFA doesn't apply anyway 

The issue is not really about POFA, and as I have stated several times Smart Parking are not using POFA because they never have 

The car park in Chorlton at the square is council owned, yet Excel Parking have obtained keeper details from the DVLA for many years, the Tram stop at Derker is Oldham council land, but Ocean parking obtain keeper details for vehicles on that car park. Bristol airport is non relevant land subject to bylaws but VCS still obtain keeper details from the DVLA database using their KADOE link

You need to separate the issues out so that you are investigating what I think you are looking into, that its land subject to the Parking Places order you found out, the one designating it as a council run car park, whereas they leased it to the gym who employed a private company, so should have revoked the council Parking Places order that was found , prior to leasing it out 

Nothing to do with POFA , nothing to do with being non relevant land either , nothing to do with ownership, or about using ANPR on council owned land either.  Its about the fact that the private parking company cannot be used on council land that is subject to those Parking places orders, so if it was a council run car park, with those orders in force, they cannot allow a private parking company to operate and issue private parking charge notices

If the Parking Places order wasn't revoked, its still subject to statutory controls, leased or not makes no difference to that basic fact 

Tazman1969

I have now had a response from Cherwell District Council regarding the parking at the Leisure centre.
I am still not convinced by their responsibilities & answers to mitigate that is down to the agents what they do. 
Also reading it, they are the land owners, the carpark is still under statutory control. 
I would appreciate any advice where to take this further if possible. 

Many thanks 

Coupon-mad

They can't say it is "down to the parking operator what they do", if this is parking spaces owned or provided by a local authority.

Show us the letter (cover all names/your data).

Tazman1969

Mr  Bodicote House.            1 OF 3

 Bodicote

 Banbury

 Oxfordshire

 OX15 4AA

 www.cherwell.gov.uk

Please ask

for:

Complaints Direct Dial: 01295 227001

Email: Complaints@cherwell-dc.gov.uk Our Ref: COM002303

2nd July 2024

Dear Mr 

I write in response to your Stage 2 complaint. Can I apologise for the delay in responding to you,

you will appreciate that these are detailed and complex matters and I wanted to look properly at

the issues.

You have complained to the Council on the grounds that the Council is allowing a private operator

to undertake ANPR enforcement at the Car Park and that this breaches the law. I have looked into

these matters carefully, and can comment as follows.

First, can I clarify the land holding and contractual arrangements:

Land ownership

Freehold: Cherwell District Council (title number ON276699)

Head tenant: Cherwell Leisure Limited - under a lease dated 25 April 2008 made between (1)

Cherwell District Council and (2) Cherwell Leisure Limited.

Sub-tenant: Parkwood Leisure Limited – under a lease dated 1 September 2015 made between

(1) Cherwell Leisure Limited and (2) Parkwood Leisure Limited.

Sub-undertenant: Legacy Leisure Limited – under a lease dated 1 September 2015 made

between (1) Parkwood Leisure Limited and (2) Legacy Leisure Limited.

Parking management

Parking at Spiceball is currently managed by a company known as “Smart Parking Limited”, on

behalf of Legacy Leisure Limited. Legacy Leisure Limited provides the leisure services on behalf of

Parkwood Leisure Limited.

Tazman1969

  2 OF 3

The Car Park is subject to an off-street parking places order (PPO), it being a PPO made under the

section 35 of the Road Traffic Regulation Act 1984. The Council entered into a management

agreement with Parkwood Leisure under which it appointed the Council to carry out parking

enforcement. Following various changes to the operating arrangements affecting the Car Park, the

management agreement with Parkwood was terminated in May 2022. Accordingly, the Council has

not been enforcing the Order. The Operator has been managing enforcement at the Car Park as

owner and occupier pursuant to the Sublease and this has entailed the use of ANPR.

The Council has a freehold interest in the reversion of the Car Park but is not currently in

occupation of the same and has no right to occupy the Car Park. The tenant has discretion as to

how to enforce parking. The PPO does not give the Council the power to use ANPR enforcement.

However, this is something of moot point as (1) the Council did not use ANPR to enforce the Order

and (2) the Lessee is not enforcing the Order for the Council.

The Council is under duties in respect of traffic management (Including parking), such as under

Section 122 of the RTRA and Section 16 of the Traffic Management Act 2004, but it is not under a

direct duty to enforce each and every PPO.

Following termination of the management agreement, the Council was no longer bound to

undertake the enforcement of the Order and has had no right under the Lease to enter the Car

Park as Landlord to undertake car park management including enforcement. Notwithstanding the

extant PPO, in such circumstances the Lessee was in possession and responsible for the

management of their own land. As such, the Tenant and/or the Operator is at liberty to determine

its own private enforcement arrangements.

Accordingly, the Operator is now permitting parking on the Car Park, i.e., its own land in which it

has a leasehold interest in possession, under contract with the persons who choose to park there,

and the Operator is entitled to undertake enforcement as a contractual matter in accordance with

the terms and conditions displayed on signs in the Car Park.

I have considered the issue of the Protection of Freedoms Act 2012. Schedule 4 of that Act can

apply to local authority land (relevant land being defined as land other than highway maintainable

at public expense, a parking place provided or controlled by an authority and land where parking is

subject to statutory control). However, if the Car Park were managed by the local authority, it would

be a parking place controlled by an authority (i.e., it would not be relevant land), so Schedule 4

would not apply. Since enforcement arrangements are a contractual matter for the Operator, I

regret your point is not relevant to this situation.

From an administrative perspective, the Council will now be moving to revoke the Order as we are

not intending to continue to enforce it.

In respect of your request for the lease documents, I will route this through our FOI team, who will

be in touch with you direct.

I hope this additional information is helpful to you, I would also like to apologise that you have felt

the need to contact the Council about your experience and trust that you are satisfied with this

response to your formal review.

This now concludes the council’s complaints process. If you are not satisfied with the outcome of

this formal review, you can ask the Local Government and Social Care Ombudsman to review your

complaint.

You usually have up to 12 months to do this, starting from the date you first knew about the matter