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Very Interesting Guidance from Department of Transport
nick05
post Wed, 4 Apr 2018 - 22:36
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Guidance on Section 56 and Schedule 4
of the Protection of Freedoms Act 2012:
Recovery of Unpaid Parking Charges

Department of Transport
2012


1. What are the main laws relating to parking on private land in England
and Wales, and the charges that can apply?

A driver who is invited to park on private land and pay a fee does so under a
contract with the landholder. Any terms and conditions which either party
wishes to enforce against the other are therefore be subject to the laws of
contract. Where a car parks on land where parking is not invited, the laws
relating to trespass may apply.

A parking contract must set out the terms that apply, including the fees payable.
It must also clearly set out the charges that apply if the terms of the contract are
broken – for example, by parking for longer than the time paid for.
Charges for breaking a parking contract must be reasonable and a genuine preestimate
of loss. This means charges must compensate the landholder only for
the loss they are likely to suffer because the parking contract has been broken.
For example, to cover the unpaid charges and the administrative costs
associated with issuing the ticket to recover the charges. Charges may not be
set at higher levels than necessary to recover business losses and the intention
should not be to penalise the driver.

6. What protection does consumer protection legislation provide in
relation to parking on private land?

Consumer protection legislation provides protections to consumers in a number
of ways, including protections from misleading information and unfair contract
terms. For example, where signs for motorists in a car park are misleading, or
other misleading information is given (for example tickets which look like local
authority tickets), or necessary information is not provided, there may be a
breach of the Consumer Protection from Unfair Trading Regulations 2008
(CPRs). Local authority trading standards services (TSS) and the Office of Fair
Trading (OFT) can take enforcement action where they consider the regulations
have or may have been breached.

If any terms provided by the landholder as part of the parking contract are
deemed unfair by a court they cannot be relied upon against a consumer. TSS,
OFT and consumers themselves can challenge unfair terms through the courts
under the Unfair Terms in Consumer Contracts Regulations 1999.
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post Wed, 4 Apr 2018 - 22:36
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SchoolRunMum
post Wed, 4 Apr 2018 - 22:46
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But out of date, due to the Beavis case quashing 'genuine preestimate of loss'.
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nick05
post Thu, 5 Apr 2018 - 00:02
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I don't think so. The Beavis case's explanatory notes have to be read, where the judge said that this was not a license for PPC to charge whatever they want. Rather it was based on the 'value' of the land (Colchester!) and other contingencies (such as the length of parking which in this case was nearly 3 hours!)
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emanresu
post Thu, 5 Apr 2018 - 04:45
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QUOTE
I don't think so.


It is always useful to have alternative views. Why not test your idea by picking up one of the claims on this site and going along with the OP to court to argue your alternative view with the judges that actually apply Beavis.

Come back with the court's reply.

Anything else is simply opinion that is untested at court.
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Dwaynedouglas
post Thu, 5 Apr 2018 - 06:54
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QUOTE (nick05 @ Thu, 5 Apr 2018 - 01:02) *
I don't think so.


Feels more suited to the Flame pit to be honest.


--------------------
I'm not a lawyer or legally trained, my opinion is based on my experience - follow at your own risk.
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The Rookie
post Thu, 5 Apr 2018 - 07:55
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Guidance is meant to reflect the law (and in 2012 that guidance did), it doesn't set it.


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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nigelbb
post Thu, 5 Apr 2018 - 08:22
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QUOTE (The Rookie @ Thu, 5 Apr 2018 - 07:55) *
Guidance is meant to reflect the law (and in 2012 that guidance did), it doesn't set it.

This guidance reflects the intention of those who drafted the law.

The Beavis case had nothing to do with POFA 2012 which is concerned with circumstances under which liability for unpaid parking charges incurred by the driver can be transferred to the keeper when the driver is unknown. Barry Beavis was identified as the driver from the outset.

This post has been edited by nigelbb: Thu, 5 Apr 2018 - 08:24


--------------------
British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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Redivi
post Thu, 5 Apr 2018 - 08:30
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Some of the parking companies use its flawed flowchart to justify continuing to pursue the keeper after the driver has been identified
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The Rookie
post Thu, 5 Apr 2018 - 10:47
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QUOTE (nigelbb @ Thu, 5 Apr 2018 - 09:22) *
QUOTE (The Rookie @ Thu, 5 Apr 2018 - 07:55) *
Guidance is meant to reflect the law (and in 2012 that guidance did), it doesn't set it.

This guidance reflects the intention of those who drafted the law.


No, not even that. We've seen guidance (and the DfT have 'form') where the guidance is fundamentally incorrect in law and in no way could be argued to have reflected the intent.

In the DfT's case its how the DfT's lawyer(s) have interpreted the law as written, as Redivi says the PoFA guidance is error laden, although this would have been a 'logically correct interpretation' at the time, the law hasn't changed but it is now just wrong in terms of GPEoL.

This post has been edited by The Rookie: Thu, 5 Apr 2018 - 10:49


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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Ocelot
post Thu, 5 Apr 2018 - 17:08
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So how much can they charge now after Beavis?
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SchoolRunMum
post Thu, 5 Apr 2018 - 18:40
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OK I will try:

They can charge a sum that is neither unconscionable, nor out of all proportion with, the sum they/the landowner could otherwise pursue in damages, given the facts in each case and considering in particular, clear notices and any legitimate interest/commercial justification (which was the excuse that allowed PE to claim £85).

This post has been edited by SchoolRunMum: Thu, 5 Apr 2018 - 18:41
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Jlc
post Thu, 5 Apr 2018 - 18:53
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The ATA's suggest £100 as a maximum. But there's far more profit in 'add-ons' nowadays.

Indeed, issuing roboclaims with these add-ons is likely to net more than the original charge (even with a few challengers).


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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Ocelot
post Fri, 6 Apr 2018 - 18:19
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Thanks, sounds quite confusing nowadays.
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Redivi
post Fri, 6 Apr 2018 - 19:12
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ParkingEye's £50 "legal representative fee", that it claims for its in-house solicitor, inflates the claim by more than 70%

It's at least a year since I checked but the total of these fees for its claims was equivalent of about 30% of its running costs
It made the difference between profit and loss
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