Guidance on private car parks
Private parking companies
Private landowners are perfectly entitled to control their land and charge drivers who wish to park their cars on that land. Many use a barrier where you pay on entry or exit; some use a 'pay and display' system; while others may choose to control the site using ANPR - "automatic number plate recognition". ANPR involves the use of CCTV cameras to record the car's time of entry and exit.
The legal justification for imposing a Parking Charge Notice (PCN) is based on the contract entered by drivers who park on the land. The terms and conditions upon which the contract is based must be clearly displayed and this is usually done through the use of adequate and prominent signs on the land - particularly at the entrance to the site and in other key areas.
Parking Charge Notice (PCN)
A PCN is either placed on a vehicle windscreen or sent through the post to the registered keeper. The PCN is used to indicate that a driver has breached the contract for parking. That may be because the operator believes the driver has not paid the requested fee, not paid enough, stayed longer than the time allotted - or parked in other ways which break the contractual rules of the site.
A PCN used by private companies is called a 'Parking' Charge Notice.
Perhaps confusingly - where parking is controlled by a public authority the method of enforcement is by what is known as a 'Penalty' Charge Notice. This has a statutory basis under the Road Traffic Act 1991. For Penalty Charge Notices issued under Road Traffic Act the registered keeper of the vehicle is liable. This however does not extend to situations where vehicles are parked on private land. The onus is on the person demanding payment, under the contract, to show that the party to it has agreed to the terms & conditions. If the keeper was not using the vehicle at the time they cannot be held liable.
Release of keeper information by DVLA
To obtain information allowing the issue of a PCN, private parking companies who can show 'reasonable cause' under the Road Vehicles (Registration & Licensing) Regulations 2002 can request the registered keeper details from DVLA. The DVLA will not release information electronically unless the company is in the British Parking Association and adheres to the Code of Practice under its Approved Operator Scheme. Private Parking Company operators should refer to the Code as best practice in this area. This does not however stop requests being made for the information by non member firms so long as the company or individual making the request has shown 'reasonable cause'. If a company is misusing data or operating with practices which are unacceptable the DVLA will stop providing information and may pass the complaint to Information Commissioner.
The BPA has advised its member firms to ensure that PCN's and correspondence makes it clear that the contractual liability lies with the driver who parked inappropriately.
Amount charged as a Parking Charge Notice
The basis for the fee being charged is purely contractual. Parking when not authorised on a site with clear signage and an indication of agreed fees will lead to a legitimate PCN. Many parking companies do stipulate the charges (over and above the parking tariffs) which will be charged on their PCN's. Such fees must be reasonable and a genuine pre-estimate of the likely loss to be suffered when the parking contract is breached. A very high parking charge which does not reflect the true losses is seen as a 'penalty' and cannot be recovered in Court. It is also possible that such penalty charges are challengeable as unfair under the Unfair Terms in Consumer Contract Regulations 1999.
Action in the courts
As a contractual dispute any action would be through the Sheriff Court. The matter would be a small claims action with the according limitation on costs. In the absence of any regulatory framework for Private Car Parking Companies, using Parking Charge Notices, individuals with disputes should:
- Consider whether or not they had agreed to the fee being levied by the existence of clear unambiguous notices.
- Consider whether the factual circumstances are correct.
- Use the companies complaint procedure where available and without cost.
- Be aware that only the user at the time can be held responsible for the inappropriate car parking.
- Be aware that the onus is on the car parking company proving who parked inappropriately.
- Be aware that the fee charge should reflect the loss incurred, it should not be a penalty.
- Be aware that the fee can only be enforced through the Sheriff Court.
- If demands are made which are unfounded or where information has been obtained, or is being used, from DVLA outside what is reasonable, a complaint should be made to Trading Standards or the Information Commissioner.
This guide is produced in good faith. It should not be taken as definitive or comprehensive. Ultimately only the courts can determine the validity and application of the law or the enforceability of contractual conditions or arrangements made.
If you require advice on any private parking issue, contact Trading Standards on 01292 616060