16 Aug 2018

A bill is currently proceeding through Parliament which when it becomes law is likely to affect anyone who owns and operates private parking for use by the public. 

Currently, the private parking sector is largely governed by contract law. When parking in a privately owned car park, the driver contracts with the landowner to park there for a set amount of time in exchange for payment. In most cases a driver who parks in a car park with clear signage setting out the terms and conditions will be deemed to have accepted the terms and conditions and therefore entered into a contract to park with the landholder (either a private landowner or an agent (or agents) properly authorised by the landowner to manage and enforce parking on the relevant land). Parking contracts, like any contract, must be made in accordance with the general law; for example, consumer protection law would be relevant to establishing whether or not the signs at a car park were sufficient, and the terms and conditions were fair. 

The background to 'The Parking (Code of Practice) Bill'

Currently only those parking operators who are members of an Accredited Trade Association (ATA) can obtain vehicle keeper information from the DVLA for parking enforcement purposes. The British Parking Association (BPA) and the International Parking Community (IPC) are the only two parking ATAs.
  
The ATAs each publish their own code of practice, with different requirements for management and operation of private car parks and appeals against parking tickets. 

In 2015 the Government carried out informal public consultation into the practices of the industry across Great Britain. Circa eighty per cent of responses acknowledged that there were "significant problems in how the sector conducts its business". 

Provisions for recovery of unpaid parking charges 

In England and Wales the keeper or the hirer of a vehicle is liable for any unpaid parking charges associated with their vehicle parked on private land, under the provisions of 'The Protection of Freedoms Act 2012' (2012 Act) . 

The power to recover charges applies only to parking on relevant land. This is defined as any land above or below ground level but some land is excluded.  Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Also excluded is any land which already has statutory controls in relation to the parking of vehicles (for example where byelaws may apply to car parks at some eg airports, ports and railway stations).

What does the new bill propose?

The system of self-regulation will be replaced. The bill requires the Secretary of State to prepare a code of practice containing guidance about the operation and management of private car parks and which would be applicable to every private parking operator. 

The bill provides that the code must contain guidance which promotes good practice in the operation and management of private car parks and guidance about appeals against parking charges imposed in relation to the use of private car parks. The bill also provides for regulations to set out the details of a levy on the parking industry to cover the costs of issuing, administering and investigating whether persons have failed to act in accordance with the code. 

The bill's stated aim is to create clarity and consistency for both parking operators and motorists. It also aims to raise the standards of the industry by incorporating best practice as standard across the industry. It is likely that operators who fail to meet the standards of the code of practice may lose access to DVLA data preventing them from enforcing unpaid parking charges.

What happens next?

Although it is a Private Member's Bill, it the support of the UK Government and is therefore likely to become law. Further, on 5 June 2018 the Scottish Parliament provided a legislative consent motion that matters within the bill in so far as these fall within the legislative competence of the Scottish Parliament should be considered by the UK Parliament.  

Having passed the Public Bill Committee on Thursday 19 July 2018 the bill's remaining stages, report and third reading, are due to take place on 23 November 2018.

Before preparing the single industry code the bill requires the Secretary of State consult with those who provide, operate or manage private car parking, users and anyone who may use private parking facilities and any other groups the Secretary of State considers appropriate. The Secretary of State's functions may be delegated to a public authority. 

Anyone who operates parking on private land for use by the public and which is not governed by other statutory controls may want to keep an eye out for the consultation.