|
Zeeky
Original Poster
1,717 posts
82 months
|
The Bill has now been given Royal Assent although it appears to be waiting for the government to bring it into effect. The Act authorises the government to make additional rules applicable to the act, such as necessary signage. We may have to wait for these to be created before the relevant part of the Act commences. In summary, Section 56 means the following:- Please post any amendments you believe should be made to make it clearer or a more accurate explanation. Wherea driver is liable, in contract or tort (damages for trespass) in respect of parking on land not subject to statutory parking control (private land) and,in the case of a claim for damages, a notice is displayed showing the amount of damages the driver is liable for, which is adequate to bring notice of that charge to the attention of the driver, thenthe creditor has the right to recover any unpaid parking charges the driver is liable for, from the registered keeper ifthe following conditions are also met. (1) The creditor (a) has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but (b) is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver. (2) the creditor (or a person acting for or on behalf of the creditor)— (a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or (b) has given a notice to keeper in accordance with paragraph 9. (3) the creditor (or a person acting for or on behalf of the creditor) has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate from the DVLA within 28 days. (4) any applicable requirements that may be prescribed by the authorities as to the display of notices were met at the beginning of the period of parking to which the unpaid parking charges relate. A few points. Nothing in the Act appears to regulate the existing practice of ticketing cars parked on private land or establishing the driver's liability in contract or tort. The driver must be liable in contract or tort - established according to the ordinary law - for the Act to be relevant. Establishing the liability of the driver is a necessary but not sufficient requirement for the RK to be liable under the Act. The Act gives defences to the RK - mainly procedural - that are not necessarily available to the driver. In other words the RK should be able to defend a claim on the basis of a procedural error notwithstanding the driver may not.
|
|
|
3Dee
2,567 posts
91 months
|
So, given I don't condone parking on private land which is not a designated parking area for the public (paid or unpaid), nor to I condone cavalier or wanton disregard to normal or reasonable parking restrictions and charges...
.... and since many have been unreasonably ticketed for the slightest of technical infringements by Parking Companies that have a vested interest in doing so, regardless of circumstance...
...Do I take it that this legislation is now a meal-ticket for those that continue to practise what has become a scourge to many generally law-abiding motorists?
Or does this legislation mean that fairness to all now prevails? Hmmm, I wonder!
Gawd knows how this got to where it is without a lot of heavy lobbying by those with a vested interest or palms being crossed? Or maybe the royal assent bit means that one or more of royalty has just invested in shares with one or more of the Parking Companies recently? Pure untrue speculation of course!
Cynical?
Maybe! But nothing surprises me now!
I think I will have a little chat with my friend in C4 TV News methinks...
|
|
|
minky monkey
1,107 posts
36 months
|
Clamping banned from Oct 2012, according to the Sia website.
|
|
|
10 Pence Short
27,920 posts
87 months
|
It's certainly a good time to get into parking enforcement. The potential for widespread revenue leakage has been stopped, which is the main worry I would have had in the industry.
What says the new legislation, if anything at all, about the role of the BPA and/or associated guidelines and an independent arbitration panel to adjudicate over disputed tickets? Now the RK is going to be established as the ultimately liable party, it would not make sense for drivers and RKs to have one route of dispute for LA tickets and another (or worse, non at all) for privately issued ones.
|
|
|
Starfighter
1,180 posts
48 months
|
The notes on damages does not indicate any limits or test of reasonableness. Is there any form of defence that the claims for damages can be excessive - For example where a car overstays a £1 per hour limit by say 5 minutes in an half empty car park yet the damages are an arbitary £60?
|
Advertisement
|
|
|
10 Pence Short
27,920 posts
87 months
|
Starfighter said: The notes on damages does not indicate any limits or test of reasonableness. Is there any form of defence that the claims for damages can be excessive - For example where a car overstays a £1 per hour limit by say 5 minutes in an half empty car park yet the damages are an arbitary £60? I'd imagine the tests for contract enforceability and the reasonableness of damages and so on can revert to being tested in court as they are now for any other matter. All the new legislation seems to do is enforce the RK into being party to the contract in the instance a driver cannot be identified.
|
|
|
Starfighter
1,180 posts
48 months
|
10 Pence Short said: Starfighter said: The notes on damages does not indicate any limits or test of reasonableness. Is there any form of defence that the claims for damages can be excessive - For example where a car overstays a £1 per hour limit by say 5 minutes in an half empty car park yet the damages are an arbitary £60? I'd imagine the tests for contract enforceability and the reasonableness of damages and so on can revert to being tested in court as they are now for any other matter. All the new legislation seems to do is enforce the RK into being party to the contract in the instance a driver cannot be identified. Logical - So would an offfer to pay a reasonable amount based on the actual "losses" be taken in to account by a court?
|
|
|
Dwight VanDriver
6,400 posts
114 months
|
Zeeky give as good nutshell My imput: And so it has come to pass. The Protection of Freedom Act 2012 has received Royal Assent and has been published. As you know two important aspects is that it outlaws private clamping and also gives owners of land power to chase up Registered Keepers in England and Wales for charges for parking which have not been paid by the driver. The good news so far is that there is no Commencement Order (yet) for section 56 and 4th Schedule that deals with parking charges. No apparent loopholes other than the fact that certain conditions apply in relation to signing (further details yet to follow in SI) and also service and content of the Notices which if not complied with may make the Notice invalid. The Act itself is a mishmash but those that have an interest park up at (Free) www.tinyurl.com/7cjfay6and read 4th Schedule Explanatory Notes. Interesting in that the Act mentions Surveillance Equipment (S.29(6)(b)) obviously CCTV but also " any other system for recording or viewing visual images for surveillance purposes". Surely this must bring in Safety Cameras and if so then HMG have to appoint a Chief Surveillance Commissioner AND a Code of Practice which will have Statutory Authority. Whilst S92 creates a Bumboys Charter...... dvd
|
|
|
Muncher
8,351 posts
119 months
|
I haven't read the explanatory notes but is there any reference to a reasonable charge? Afterall, penalty clauses are not enforeceable.
|
|
|
Mojooo
7,415 posts
50 months
|
One thing to bear in mind - the parking charges will be enforced by civil debt recovery mechanisms as far as I am aware - i.e small claims court
There rae lots of peopel happy to run up debts and not pay them so they can run up parking bills with no problem - this doesnt then deter them or punish them like clamping does, does it?
IMO, they should have heavily regulated claping with extremley harsh punishments for non compliance - but of course, more regulation is not on the agenda.
|
|
|
grumpyscot
478 posts
62 months
|
I take it the rule will only apply in England, since the wording doesn't seem applicable to parts of Scots law.
|
|
|
TeamD
3,425 posts
102 months
|
Erm, so who determines the sum for the "damages"?
|
|
|
Muncher
8,351 posts
119 months
|
My take on it is anything other than the parking charge for the period not paid for less plus an accurate assessment of the cost of recovering it. It's difficult to say where you draw the line between a genuine pre-assment of loss and a penalty clause. I'd say anything over £50 certainly looks like a penalty clause.
I'm not even sure any of the parking companies would want to enforce it through the courts, they'd probably much rather threaten a higher amount and accept that a few people will pay up before it gets to court.
|
|
|
ExFiF
18,621 posts
121 months
|
As it's written, suppose the notice says the payment is £10 plus £50 for each letter, it will soon be possible to rack up an amount owed worth taking to court over. Especially if recovery agent fees become involved.
|
|
|
Starfighter
1,180 posts
48 months
|
Where does towing fit with this? Is this now outlawed as well or are we going to be seeing more cars lifted and hed for ransom?
|
|
|
Muncher
8,351 posts
119 months
|
Towing, immobilising and blocking in are all covered.
|
|
|
Starfighter
1,180 posts
48 months
|
Muncher said: Towing, immobilising and blocking in are all covered. So basicly anything that actually detains the vehicle or prevents it being used. Good.
|
|
|
Who me ?
3,917 posts
82 months
|
Looking at this, how is the notice to be attached. If adhesive is used, then would the RK be able to respond with a charge ( plus possibly a penalty) for criminal damage, plus loss of use whilst the screen is cleaned.Or worst still ,having the vehicle uplifted ,as the screen is contaminated, rendering the vehicle dangerous to drive. On the other hand, if placed under the wipers, should the wipers be operated, or a dealer consulted to see if wipers can be safely operated ,and if not, can vehicle be driven as it now contravenes the construction & use legislation .
|
|
|
streaky
18,354 posts
119 months
|
Dwight VanDriver said: Interesting in that the Act mentions Surveillance Equipment (S.29(6)(b)) obviously CCTV but also " any other system for recording or viewing visual images for surveillance purposes". Surely this must bring in Safety Cameras and if so then HMG have to appoint a Chief Surveillance Commissioner AND a Code of Practice which will have Statutory Authority.
dvd It certainly covers ANPR, so I imagine scameras are included. The COP will be the interesting document. Streaky
|
|
|
ExFiF
18,621 posts
121 months
|
Starfighter said: Muncher said: Towing, immobilising and blocking in are all covered. So basicly anything that actually detains the vehicle or prevents it being used. Good. But note that it can be prevented from exiting such as a car park by a lowered barrier. commentary 207 said: 207. Subsection (2) is subject to the exception in s ubsection (3 ) the effect of which is to exclude from the ambit of the offence the case of a driver who has given express or implied consent (for example, when entering a privately operated car park) to the movement of his or her vehicle being restricted by a fixed barrier. Accordingly, no offence would be committed where a driver was prevented from leaving a car park because the vehicle’s exit was blocked by a fixed barrier which remained in place because the driver had not paid the requisite parking charges (provided the barrier was present when the vehicle was parked, whether or not it only subsequently restricted movement, for example by being lowered into place). On the other hand it seems to permit the favourite PH response to returning to one's abode and finding a cuckoo in the nest, namely, jack it up, place MaccyD plastic trays under each wheel and drag into road, leave and report for obstruction. commentary 205 said: Consequently, a person who moved an obstructively parked vehicle a short distance intending to regain access to his or her property would not be committing the offence in circumstances where he or she did not intend to prevent the driver of the vehicle from subsequently retrieving it. Anyone else find it ironic that the legislation also contains elements for cancellation previous convictions for buggery. 
|
|
