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Pontoneer

3,464 posts

70 months

[news] 
Sunday 7th October 2012 quote quote all
mjb1 said:
Nice interpretation, but if that was right you might as well just clamp his car and demand £150.
AIUI the fee should not contain a punitive element , my suggestion would simply be a reasonable daily parking fee , more or less in line with other nearby car parks , payable before exit .

It is unlikely the court would go against him being asked to pay a fair charge for his day's parking before he exits .

Zeeky

2,516 posts

96 months

[news] 
Sunday 7th October 2012 quote quote all
Pontoneer said:
Not much different to having an exit barrier which requires a payment before it will go up ...
Sufficiently different. The exit barrier must present on entry.


(3) But, where the restriction of the movement of the vehicle is by means of a fixed barrier and the barrier was present (whether or not lowered into place or otherwise restricting movement) when the vehicle was parked, any express or implied consent (whether or not legally binding) of the driver of the vehicle to the restriction is, for the purposes of subsection (1), lawful authority for the restriction.


Johnnytheboy

10,185 posts

70 months

[news] 
Sunday 7th October 2012 quote quote all
Exit barrier with a code - then just keep changing the code.

Or tokens?

Lots of hotels do this.

FiF

23,274 posts

135 months

[news] 
Sunday 7th October 2012 quote quote all
9mm said:
If it's not worth installing barriers, stickering offending vehicles, confronting nasty big men or getting scary letters from law firms, then it's not worth getting excited about at all is it?
First prize for the most pointless post of the century.
rolleyes

If you read back to the original post, the OP is experiencing an problem, sees it as the thin end of the wedge, clamping and blocking in are now illegal, OP states security access is not possible / appropriate. and has confronted a nasty big man.

So your point is what exactly?

9mm said:
The advice given has been sensible. Sticker up the car in a way which will seriously inconvenience this guy. If he is as intimidating when speaking to staff as has been stated then speak to the Police.
Don't disagree with a word of that, and if that doesn't work where does the OP go next?

Personally I agree with surveyor

surveyor said:
But that's bks dreamed up by some civil servants in Whitehall. Most of these people don't charge for parking so there is no loss, and no consideration. Equally say a customers car park, how can you define the loss of a customer driving on in financial terms? Or the loss of an employee having to spend time looking for another parking space.

No point in pretending that this law has given landowners rights in defending their land - all it's taken-away was enforcement that worked. What they should have done is brought in regulated fee's for clampers, and a proper compulsory and binding third party tribunal.
Edited by FiF on Sunday 7th October 16:37

Zeeky

2,516 posts

96 months

[news] 
Sunday 7th October 2012 quote quote all
FiF said:
...Personally I agree with surveyor...
You both misunderstand the bases for charging the RK or driver for parking on private land. The only difference between the current law and the law that allowed clamping is that prior to PoFA the landowner gets the payment before the driver leaves. Now he recovers it after wards, either from the driver or the RK.

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FiF

23,274 posts

135 months

[news] 
Sunday 7th October 2012 quote quote all
Zeeky said:
FiF said:
...Personally I agree with surveyor...
You both misunderstand the bases for charging the RK or driver for parking on private land. The only difference between the current law and the law that allowed clamping is that prior to PoFA the landowner gets the payment before the driver leaves. Now he recovers it after wards, either from the driver or the RK.
I can't speak for surveyor but I perfectly well understand the differences.

You, on the other hand, have missed the point completely.

Manicminer

3,294 posts

81 months

[news] 
Sunday 7th October 2012 quote quote all
Not entirely serious but while he's away, drain the oil out of his sump. Refit sump plug and be sure to smear dirt around so it looks undisturbed.

Remove drained oil and dispose.

He'll probably get a fair distance before the engine self destructs and matey is left with a large bill and be cursing why he didn't check his oil level more often.

/don't do this...


You can apply to the DVLA for the owners details. They will require a photo of the car in your space and (I think) a fiver in exchange for his details. We did this with a persistant private space stealer but fortunately my problem went away before I had to start writing letters and involving solicitors.

http://www.direct.gov.uk/en/Diol1/DoItOnline/DG_10...

13th

Original Poster:

3,165 posts

97 months

[news] 
Sunday 7th October 2012 quote quote all
[quote=Manicminer]Not entirely serious but while he's away, drain the oil out of his sump. Refit sump plug and be sure to smear dirt around so it looks undisturbed.

Now I am really loving that idea but, sadly our car park is prestine so it would have to be straight into a residual trsy, amongst us ladies we have neither the know how or the ability!

Zeeky

2,516 posts

96 months

[news] 
Sunday 7th October 2012 quote quote all
FiF said:
I can't speak for surveyor but I perfectly well understand the differences.

You, on the other hand, have missed the point completely.
If you agree with surveyor then clearly you do not understand them. You would have pointed out his misunderstanding rather than agree with him.


The point - that you incorrectly asserted I had missed - is that the new regime is not completely ineffective.

There is no difficulty in quantifying damages for trespass when clamping so why do you think there will be a problem doing so for ticketing?



FiF

23,274 posts

135 months

[news] 
Sunday 7th October 2012 quote quote all
Zeeky said:
FiF said:
I can't speak for surveyor but I perfectly well understand the differences.

You, on the other hand, have missed the point completely.
If you agree with surveyor then clearly you do not understand them. You would have pointed out his misunderstanding rather than agree with him.


The point - that you incorrectly asserted I had missed - is that the new regime is not completely ineffective.

There is no difficulty in quantifying damages for trespass when clamping so why do you think there will be a problem doing so for ticketing?
The point that you've missed, is that clamping or blocking in prevents the person leaving. This forces them to face the consequences of their action. What was missing with clamping was there was no degree of effective regulation in terms of level of charges, no regulation of permitted methods of operation, no effective nor binding arbitration or conciliation service. Nothing. The ruling about registration of operatives was a waste of time.

The mealy mouthed BPA code of practice only applied in theory to the BPA members, and the BPA applied pretty much zero enforcement. The whole thing was a free for all which resulted in the unacceptable behaviour of some / many of the clampers.

With ticketing, the person leaves, and then one is into potentially protracted exchanges. It remains to be seen how effective it will be, and to what extent it will be abused by both sides. There is still no limit on what fines can be. Yes the legislation skirts round it and makes an attempt to limit the charges, but in my opinion the worst operators in this industry will push and push until someone gets to the stage that a court makes a ruling on the level of acceptable fees. Of course there are means now to enforce on the RK in the absence of the driver, true, but I have no faith that this will not be abused by, as I said, both parties.

The point that surveyor and I seem to be making is that clamping should be allowed, but very carefully regulated, with rigidly limited release fees, and legally enforceable controlled procedures. All enforced by a legally binding arbitration service with sharp teeth, not only for clampers but also landowners who employed clampers who operated outwith the regulations. Technically landowners used to be legally at risk if they employed unregistered clampers, wow big deal, was a landlord ever prosecuted. I suspect one was never even questioned.

surveyor

7,334 posts

68 months

[news] 
Sunday 7th October 2012 quote quote all
FiF said:
Zeeky said:
FiF said:
I can't speak for surveyor but I perfectly well understand the differences.

You, on the other hand, have missed the point completely.
If you agree with surveyor then clearly you do not understand them. You would have pointed out his misunderstanding rather than agree with him.


The point - that you incorrectly asserted I had missed - is that the new regime is not completely ineffective.

There is no difficulty in quantifying damages for trespass when clamping so why do you think there will be a problem doing so for ticketing?
The point that you've missed, is that clamping or blocking in prevents the person leaving. This forces them to face the consequences of their action. What was missing with clamping was there was no degree of effective regulation in terms of level of charges, no regulation of permitted methods of operation, no effective nor binding arbitration or conciliation service. Nothing. The ruling about registration of operatives was a waste of time.

The mealy mouthed BPA code of practice only applied in theory to the BPA members, and the BPA applied pretty much zero enforcement. The whole thing was a free for all which resulted in the unacceptable behaviour of some / many of the clampers.

With ticketing, the person leaves, and then one is into potentially protracted exchanges. It remains to be seen how effective it will be, and to what extent it will be abused by both sides. There is still no limit on what fines can be. Yes the legislation skirts round it and makes an attempt to limit the charges, but in my opinion the worst operators in this industry will push and push until someone gets to the stage that a court makes a ruling on the level of acceptable fees. Of course there are means now to enforce on the RK in the absence of the driver, true, but I have no faith that this will not be abused by, as I said, both parties.

The point that surveyor and I seem to be making is that clamping should be allowed, but very carefully regulated, with rigidly limited release fees, and legally enforceable controlled procedures. All enforced by a legally binding arbitration service with sharp teeth, not only for clampers but also landowners who employed clampers who operated outwith the regulations. Technically landowners used to be legally at risk if they employed unregistered clampers, wow big deal, was a landlord ever prosecuted. I suspect one was never even questioned.
Agreed - thanks for all of the typing... Saved me smile

Zeeky

2,516 posts

96 months

[news] 
Sunday 7th October 2012 quote quote all
FiF said:
The point that you've missed, is that clamping or blocking in prevents the person leaving.
The point being made by surveyor was that ticketing isn't effective. To support this he made reference to not being able to assess damages. Why does anyone believe it is not possible to quantify damages when ticketing but it is when clamping?

FiF said:
This forces them to face the consequences of their action.
It forces them to hand over money they may or may not owe. Ticketing for charges places the onus on the person alleging he is owed money to take legal proceedings to recover this money. He will generally not do so unless he is confident he is owed the money.

FiF said:
With ticketing, the person leaves, and then one is into potentially protracted exchanges.
Why would these exchanges be ineffective at getting payment from those who owe it?

FiF said:
It remains to be seen how effective it will be, and to what extent it will be abused by both sides.
You agreed with surveyor that it is ineffective. I agree it remains to be seen but there is no reason why it shouldn't be.

FiF said:
There is still no limit on what fines can be.
The limit is zero on fines. Damages are reasonable losses. Charges are unlimited.

FiF said:
Yes the legislation skirts round it and makes an attempt to limit the charges, but in my opinion the worst operators in this industry will push and push until someone gets to the stage that a court makes a ruling on the level of acceptable fees. Of course there are means now to enforce on the RK in the absence of the driver, true, but I have no faith that this will not be abused by, as I said, both parties.
The legislation makes no attempt to limit charges. It merely makes the RK liable - in some circumstances - for whatever the driver is liable for under contract and tort

FiF said:
The point that surveyor and I seem to be making is that clamping should be allowed, but very carefully regulated, with rigidly limited release fees, and legally enforceable controlled procedures. All enforced by a legally binding arbitration service with sharp teeth, not only for clampers but also landowners who employed clampers who operated outwith the regulations. Technically landowners used to be legally at risk if they employed unregistered clampers, wow big deal, was a landlord ever prosecuted. I suspect one was never even questioned.
The point surveyor made was that ticketing is ineffective. It appears you do not agree with him after all. I do agree with you that the ticketing regime appears to be full of holes although I believe the potential abuse is still mostly open to the landowner/parking company. The fact that you refer to payments as fines indicates why you approve of (properly regulated) clamping. You appear to believe that landowners should be able to punish freeloaders to deter them from freeloading.

I prefer a system where the person claiming money has to prove he is owed it before the claim is paid. I don't see parking as a unique case that deserves making the person pay and only then giving him the opportunity to appeal to an independent tribunal if he believes he does not owe the money. We should either have fines or charges. The use of clamping is really fines dressed up as charges/agreed damages.




hidetheelephants

7,843 posts

77 months

[news] 
Monday 8th October 2012 quote quote all
Pontoneer said:
The other option is indeed for another vehicle to block him in .

When asked to let him out you respond that will be no problem - unfortunately , the driver won't be back until the end of the day / next morning , at which point he can get his car out .

Otherwise , if you have access to a tow truck / set of car skates , maybe just a trolley jack , you would be perfectly entitled to remove the offending car from your car park and dump it outside on the street ( where it might well be ticketed / towed away ) . How sad for the owner .
This; got any friends with 4x4s? A jack, 4 MaccyD trays and a towrope, followed by a phonecall to Dibble about the car abandoned in the road.

oldcynic

1,687 posts

45 months

[news] 
Monday 8th October 2012 quote quote all
Pontoneer said:
you would be perfectly entitled to remove the offending car from your car park and dump it outside on the street
I'm curious.

Would the landowner be perfectly entitled to remove the car from his/her car park? Would the landowner then be liable for costs incurred(Local Authority parking ticket or whatever)

FiF

23,274 posts

135 months

[news] 
Monday 8th October 2012 quote quote all
Zeeky said:
The point surveyor made was that ticketing is ineffective. It appears you do not agree with him after all. I do agree with you that the ticketing regime appears to be full of holes
Let me phrase it more precisely. I believe it will prove to be ineffective and become disreputable because of all the holes.

Zeeky said:
You appear to believe that landowners should be able to punish freeloaders to deter them from freeloading.
Absolutely, crack on.


surveyor

7,334 posts

68 months

[news] 
Monday 8th October 2012 quote quote all
Zeeky said:
The point surveyor made was that ticketing is ineffective. It appears you do not agree with him after all. I do agree with you that the ticketing regime appears to be full of holes although I believe the potential abuse is still mostly open to the landowner/parking company. The fact that you refer to payments as fines indicates why you approve of (properly regulated) clamping. You appear to believe that landowners should be able to punish freeloaders to deter them from freeloading.

I prefer a system where the person claiming money has to prove he is owed it before the claim is paid. I don't see parking as a unique case that deserves making the person pay and only then giving him the opportunity to appeal to an independent tribunal if he believes he does not owe the money. We should either have fines or charges. The use of clamping is really fines dressed up as charges/agreed damages.
To most landowners the use of clamps is to make sure they or others who they wish to park can park on their land without hindrance. A sign saying if you park here and are not one of our customers you agree to pay £150 is not going to deter. When a case gets pushed through and it's decided that you can't bill a penalty, only your loss it will get worse.

The threat of not being able to get home was much more effective.

Ean218

1,049 posts

134 months

[news] 
Monday 8th October 2012 quote quote all
Pontoneer said:
AIUI the fee should not contain a punitive element , my suggestion would simply be a reasonable daily parking fee , more or less in line with other nearby car parks , payable before exit .

It is unlikely the court would go against him being asked to pay a fair charge for his day's parking before he exits .
The fee is just that, a fee. Nearby car parks have no relevance. They may be set up on a commercial basis as car parks. Yours may be just for you and your customers to use gratis.

If anyone else wants to park in your car park they have to pay how much you tell them they have to pay, 5p, £50, £7000. It is up to you to decide the level of the fee, it is up to the parker to decide whether they are happy to pay it.

There is nothing punitive about that, it is purely a transaction between two willing parties.

The new legislation just makes it easier to force the RK to pay the fee agreed by the parker.

mrmr96

13,586 posts

88 months

[news] 
Monday 8th October 2012 quote quote all
Pontoneer said:
It is unlikely the court would go against him being asked to pay a fair charge for his day's parking before he exits .
This would be more like the barrier at the NCP not going up until you've paid your ticket. Nothing like clamping really?

Zeeky

2,516 posts

96 months

[news] 
Monday 8th October 2012 quote quote all
surveyor said:
To most landowners the use of clamps is to make sure they or others who they wish to park can park on their land without hindrance. A sign saying if you park here and are not one of our customers you agree to pay £150 is not going to deter. When a case gets pushed through and it's decided that you can't bill a penalty, only your loss it will get worse.

The threat of not being able to get home was much more effective.
If you use the business model I have described the charge cannot be a penalty.

If the legal basis for clamping is sound there is no reason why the legal basis for ticketing should not be either. Clamping avoids the need for an independent tribunal to establish the lawfulness of the claim prior to payment. Ticketing means the landowner has more incentive to get it right. I believe that is a just development.

I think you are worrying too much about whether or not ticketing is enforceable. It is. Indeed it must be, so long as it done properly. It is regulated by the same common law that applies to clamping.

The reason people have got away with it so easily until now is that the landowner cannot usually identify the driver. Now he doesn't need to. He can chase the RK and the vast majority of RKs can be claimed against.

Get the signage right and the freeloaders will struggle to avoid payment. Whatever pepipoo and SP&tL tell you.






Zeeky

2,516 posts

96 months

[news] 
Monday 8th October 2012 quote quote all
Getting back to the OP's question it may still be possible to detain a vehicle until payment is made. If you read paragraph 3 quoted above a barrier that is in place when a driver enters the land is not caught by the prohibition on imobilising.


If you invest in one (or more) of those bollards that you fold down to drive onto your parking spot then raise and lock when you leave to reserve it for your return then that should meet the requirements of a barrier in place when the vehicle is parked.

Freeloaders might think twice about driving over a bollard that can be raised to block them in.
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