When it comes to private off-street car parks, it has been established that the Terms and Conditions of Use are essentially a contractual matter. No public body will carry out enforcement or remove the vehicles of those who park on private land, even if those vehicles are clearly unauthorized or are causing an obstruction. Only in extreme situations will the authorities step in. It is, therefore, left to the landowner to control the use of their privately owned parking facility by stating its Terms and Conditions of Use. By choosing to park on private land, a driver is accepting the Terms and Conditions of Use of the car park and voluntarily entering into a contract. Such a contract is enforceable by issuing Parking Charge Notices to those who contravene the Terms and Conditions of Use, and, as a last resort, by clamping or removal.

Parking Charge Notices

It is a common misconception that a Parking Charge Notice can be easily challenged. There are four common claims by vehicle owners that have generally proven unsuccessful:

1) The defendant denies being the driver. Drivers claim that many people have access to their car, and that they were not driving on that occasion. In practice, this has proven to be a weak defense. On the balance of probabilities, a court will hold that he or she was indeed the driver unless the defendant can provideclear, firm evidence to the contrary.

2) The defendant claims that the signage declaring the Terms and Conditions of Use was inadequate for any person and not sufficient to form a contract if the person did not see it. Several examples of case law have been quoted in the past, and the courts have ruled from the evidence that the signage was there to be seen and the fact that it was not seen (or claimed not to have been seen by the defendant) was not sufficient.

3) The defendant claims that there was no consideration (an integral part of a contract). While there was no physical consideration, the courts have found that the consideration is in fact the use of the parking facility.

4) The defendant claims that the parking charge is a penalty. By examining details of how parking charges are established, and by reviewing case law (McAlpine-v-Tilebox, for example), the courts have found that a parking charge is not a penalty but an agreed charge.

The courts have been critical of the methods used by such defendants, and by those taking the advice of anonymous “experts” on the internet. One judge described such a defendant as “disingenuous” as a result.

Clamping & Towing

MET Parking Services staff involved in vehicle immobilisation hold an SIA license, which permits us to offer a Clamping and Towing service.

The Private Security Industry Act 2001 regulates the practice of vehicle immobilisation and towing. Since the 3 May 2005, those offering this service in England and Wales have been required to hold a Security Industry Authority license and adhere to a Code of Practice. This applies, not only to operators fixing a clamp or towing a vehicle, but also to their supervisors and senior management.

As in the case of issuing Parking Charge Notices, Clamping and Towing can be justified only if there are clearly visible warning notices on display at intervals throughout the car park.

As well as the requirement for adequate warning notices, the amount of the release fee must be reasonable, and arrangements must be in place for the prompt release of the vehicle once the fee is paid.

Disabled Drivers

On public roads, Blue Badge holders may generally park for free at parking meters, in pay-and-display bays and on yellow lines.

Perhaps as a result of the Blue Badge Scheme there is a widely held misconception that parking for the disabled is also free in private car parks. The fact is, while disabled drivers must be accommodated by providing convenient and larger Disabled Bays, they must also abide by the same Terms and Conditions of Use as all other drivers.

Part 3 of The Disability Discrimination Act 1995

Where there is suspected misuse of Disabled Bays in private car parks, enforcing the parking restrictions is solely the responsibility of the landowner. It is, of course, in the interests of retailers to enforce their Disabled Bays, as loss of trade results if these customers are unable to shop at their stores.

Part 3 of The Disability Discrimination Act 1995 requires service providers to take reasonable steps to ensure that disabled people do not find it impossible, or unreasonably difficult, to enjoy the service on the same basis as non-disabled people. This has implications for car park operators, who must reserve and mark out a reasonable number of Disabled Bays and take reasonable steps to ensure that these spaces remain available to disabled people.

The abuse of Disabled parking bays is a growing concern, causing inconvenience and distress to those affected.

Contact a member of the MET Parking Services team on 0207 118 8003

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