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Father Dougal Ma...
post Tue, 11 Sep 2018 - 10:07
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Just posting an observation.

We all know about the confusion on bye-laws at railway parking.

Indigo, at my station, refer to bye-laws being applicable, and so don't offer POPLA appeals. BUT they have added a big sign at the entrance now stating "Private land". So which is it, cant be both....

And now they add new notices saying clamping in operation. Really, on "private land".

Extraordinary. surely this is a gross abuse of the code of conduct....
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post Tue, 11 Sep 2018 - 10:07
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Churchmouse
post Wed, 12 Sep 2018 - 15:06
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QUOTE (Gary Bloke @ Wed, 12 Sep 2018 - 00:57) *
The DVLA does not allow parking operators to use a mixture of contract law and Byelaws at the same time. Parking operators must choose one or other form of parking management and stick to it. This is demonstrated in the emails released in response to Freedom of Information Request 302420. On pages 15 and 16, the DVLA writes to the Legal Counsel at NCP as follows: “We note the position you are in with railway car parking but we would restate that if you are operating the railway car parks under Byelaw 14 then that must be clear on the signage, communications and tickets and if you are operating the car parks under contract then that needs to be clear on signage, communications and tickets. We will not release data for those sites where it is not clear to the users which you are using or where you may decide after the event which you will use (byelaw prosecution or contractual breach)”.

Regarding the Beavis ruling, I am not saying it definitely would not apply at train station car parks which are managed using contract law. What I'm saying is that the ruling was specific to the situation of Mr Beavis, and that same ruling does not necessarily apply to the very different situation at train station car parks.
For example:
- Mr Beavis overstayed a free parking period, while at station car parks there is always a single charge for staying the whole day (no free periods)
- ParkingEye were making all their money from fines, while PPC's like Indigo are paid to provide parking management services irrespective of whether they issue any tickets (so they have an assured revenue stream unlike PE)
- In the Beavis case there was a commercial justification to promote a turnover of customers in the car parks so that local shops would not be starved of custom. The station car parks managed by Indigo serve London commuters who arrive early in the morning and leave in the evening. The customer turnover argument does not really apply because relatively few people arrive to use the station car parks after the morning rush.
- The Indigo £100 charge can be seen as extravagant and unconscionable, because it is significantly greater than the £50 to £70 charge applied in nearby local authority car parks for similar offences.

The DVLA (any government entity, really) is a bad source of information regarding the legality of anything, nor are they authorised to advise third parties, so their statements regarding the law should be treated with extreme suspicion. At best, they can inform you of their policies regarding various matters (which policies may be illegal and/or unenforceable, but they remain as policies). How, exactly, is the DVLA to know whether the PPC has made it "clear to the users which you are using or where you may decide after the event which you will use (byelaw prosecution or contractual breach)"? Are the DVLA now doing site inspections and auditing PPC signage? Of course not. I cannot find the referenced FOIA request anywhere online, but I appears to me that some idiot at NCP decided to ask the DVLA a garbage question and got a garbage answer in return. Freedom of Nonsense Act, more like...

In any case, the most important aspect of this is that land subject to byelaws is not "relevant land" for POFA 2012 purposes, so the PPC will have difficulty enforcing their alleged contracts if they can only pursue "unknown" drivers.

Gary, you have said the same things about Beavis in previous threads on PePiPoo, and you have stated them not as opinion but as fact. It is fair to say that, in your opinion, Beavis does not apply to train station public car parks, but I would not offer any odds on an appeals court necessarily agreeing with you. There are distinctions that may be drawn between free public car parks and pay and display public car parks, but I can easily see a court deciding that these distinctions do not amount to a difference in law. Indeed, there are counter-arguments to each of the points you have raised:

- The lack of free parking periods does not alter the calculus supporting the Beavis court's reasoning: to cite just one example, if the pay and display charge does not actually cover the expense of operating the parking scheme, then the PCN amounts would have exactly the same function in relation to the "reasonable objective" of managing the car park.

- We don't know the details of Indigo's or NCP's contracts with TOC, do we? But even if you're right, one of the two objectives approved by the Beavis court was the PPC's commercial objective of making enough profit to make car park management worthwhile, so even if the "assured revenue stream" was not enough to do that, the commercial justification would remain.

- I wonder why the Beavis court did not also acknowledge this "commercial justification" in light of the fact that many free car park overstayers would have been customers of the retail businesses--spending more money than if they had been forced to leave after two hours and not allowed to come back! Did they really think that any retailer would have preferred to have a free-spending actual customer forced to stop spending in favour of allowing someone else to park--who may not spend a penny? But I digress. I agree that the "customer turnover" element is relatively lacking in a station car park, but they are not all operated on an "all day" basis. Many have various "off-peak" rates and no doubt some charge hourly as well. The relevant point, however, is that the Beavis court was not saying that the PPC's (and landowner's) legitimate interest in encouraging customer turnover was the only acceptable "commercial justification": the requirement was simply that there must have been a commercial justification for imposing the parking charge. Unfortunately, that is not a very high bar to clear.

- Given the analysis performed by the Beavis court on this point, your tongue must have been very firmly planted in your cheek when you wrote that... Paragraph 100 in the judgment contains numerous potential counter-arguments, so it's really going to be up the the judge on a given day to decide what level of charge is or is not extravagant or unconscionable in a train station public car park.

It is important to understand on a fundamental level that courts of appeal (and the Supreme Court in particular) are not in the business of deciding the cases before them based on narrow factual patterns. That would probably be unjust, but it would certainly be a hugely inefficient way of spending the taxpayers' money. Primarily what courts of appeal do is decide relatively broad principles of law which can be applied to many different factual situations by the lower courts of the land. Of course, such courts can do so faithfully as well as erroneously, but the intention is that they do it in accordance with the reasoning and the precedents set by the higher courts. In my opinion, there is enough similarity between a free public car park and a pay and display public car park to expect that a lower court would seek to apply Beavis there--and I certainly wouldn't risk my money betting on them not doing so.

--Churchmouse
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Gary Bloke
post Wed, 12 Sep 2018 - 22:38
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We are getting off the topic of the original post. However...

The DVLA was not pronouncing on the legality of anything. It was stating that it would not release keeper details in situations where it was unclear to the motorist whether contract law or byelaws were being used to manage the car park. Please don't ask me how the DVLA expects to find that out - I am simply quoting what they said to NCP. Quite possibly the DVLA might receive complaints from motorists about specific car parks and specific PPC's who do not make this clear. After all, the PPC parking charge can only be either (i) a claim for damages for breach of contract / trespass or (ii) an offer to avoid a prosecution for breach of byelaws. It cannot be both of these things at the same time - and the motorist has a right to know which one it is.

To be clear, it is only your opinion that the NCP person is an idiot and that the question and answer are both garbage. These are not statements of fact.

Whether or not the Beavis ruling would apply to a station car park managed under contract law has never been tested in court. So clearly my statements are my own opinion, I would have though that was obvious. If this was not the case, then thank you pointing this out with such sage erudition. I will make it clearer in future.

We do indeed know the details of Indigo's contract with the TOC's and one example has been published on this forum some months ago.







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southpaw82
post Thu, 13 Sep 2018 - 08:20
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QUOTE (Gary Bloke @ Wed, 12 Sep 2018 - 23:38) *
We do indeed know the details of Indigo's contract with the TOC's and one example has been published on this forum some months ago.

Well, no. You have one example so all you can say is at a certain point in time you know what the agreement was with the relevant counterparty. This may allow you to extrapolate as to what you believe is the current position but you can’t know what it is absent current contracts involving the specific parties.


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Churchmouse
post Thu, 13 Sep 2018 - 12:11
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QUOTE (Gary Bloke @ Wed, 12 Sep 2018 - 23:38) *
To be clear, it is only your opinion that the NCP person is an idiot and that the question and answer are both garbage. These are not statements of fact.

Whether or not the Beavis ruling would apply to a station car park managed under contract law has never been tested in court. So clearly my statements are my own opinion, I would have though that was obvious. If this was not the case, then thank you pointing this out with such sage erudition. I will make it clearer in future.

If you would kindly upload, or direct me to the online location of, that NCP-DVLA FOIA request, we can verify whether my reckless speculation as to the intellectual capacity of the NCP legal counsel and the utility of the FOIA exchange is indeed valid. Having not seen the documents I didn't have much to go on...

Re: Beavis and its potential applicability to train station public car parks; thank you. Given that the Supreme Court decided Beavis almost three years ago now, I'm surprised there haven't been any appeals court judgments relating to the applicability of Beavis to different parking situations? I'm not sure the PPCs are actually litigating train station PCNs, however, given their rather dodgy legal basis--which would somewhat limit the opportunity to appeal an adverse county court judgment... Still, the pay and display public car park scenario should have been litigated (and appealed?) by now.

--Churchmouse
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southpaw82
post Thu, 13 Sep 2018 - 13:01
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QUOTE (Churchmouse @ Thu, 13 Sep 2018 - 13:11) *
Re: Beavis and its potential applicability to train station public car parks; thank you. Given that the Supreme Court decided Beavis almost three years ago now, I'm surprised there haven't been any appeals court judgments relating to the applicability of Beavis to different parking situations? I'm not sure the PPCs are actually litigating train station PCNs, however, given their rather dodgy legal basis--which would somewhat limit the opportunity to appeal an adverse county court judgment... Still, the pay and display public car park scenario should have been litigated (and appealed?) by now.

The relevant court may not have granted leave to appeal - on the basis that it has no prospect of success, perhaps.


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Churchmouse
post Thu, 13 Sep 2018 - 22:55
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QUOTE (southpaw82 @ Thu, 13 Sep 2018 - 14:01) *
QUOTE (Churchmouse @ Thu, 13 Sep 2018 - 13:11) *
Re: Beavis and its potential applicability to train station public car parks; thank you. Given that the Supreme Court decided Beavis almost three years ago now, I'm surprised there haven't been any appeals court judgments relating to the applicability of Beavis to different parking situations? I'm not sure the PPCs are actually litigating train station PCNs, however, given their rather dodgy legal basis--which would somewhat limit the opportunity to appeal an adverse county court judgment... Still, the pay and display public car park scenario should have been litigated (and appealed?) by now.

The relevant court may not have granted leave to appeal - on the basis that it has no prospect of success, perhaps.

Perhaps. But have we heard of anyone requesting--and failing to obtain--permission to appeal on this basis? I imagine that most people who lose a PCN case in court are not adequately prepared to proceed to the next stage, even if they wanted to (or could risk the additional expense). How did Barry Beavis manage it? Did he have help from the outset?

--Churchmouse
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