Parking Charges - the myth of enforceability
It has perhaps been a longstanding myth (or perhaps hope)amongst those parking on private land, that parking charges issued by private companies on that land cannot be enforced. It is not clear where that myth stems from but, subject to certain provisions,that is certainly not the legal position. The position was starkly highlighted in a recent decision at Dundee Sheriff Court in the case of Vehicle Control Services Ltd v Carly Mackie [2017]in which a motorist has been ordered to pay£24,500 in outstandingparking charges
What is the law?
Enforceable parking charges in Scotland arise as a result of a contract that is entered into between the motorist and the owner (or operator)of the land upon which a vehicle is parked. That contract is usually constituted by way of written notices that provide the terms and conditions upon which motorists are offered parking facilities. Typically, a failure to purchase a permit or a ticket will result in a daily charge in theregion of £100. The driver therefore has a choice (1) to accept the terms and park subject to those term sand conditionsor (2) to reject the terms and move on.
The case law on the issue is not new - 'The judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other.' (Gloag on Contract (2nd ed), page 7, approved by Lord Reid in McCutcheon v David MacBrayne Ltd 1964 SC (HL) 28 at 35.).
In order to successfully recover parking charges, it is important for the parking operator to clearly and accurately set out the terms upon which parking facilities are offered to customers. Clarity is available on how that position can be achieved and many parking operators comply with the Code of Practice suggested by the British Parking Association or other similar advisory body. Adhering to the Code of Practice will increase the likelihood of establishing that a valid contract between motorist and operator has been created.
Why should parking charges be enforced?
As was highlighted by the Sheriff in the above case of Vehicle Control Services Ltd v Carly Mackie"The proprietors have a legitimate interest arising from their title to the land to protect their property and their amenity. Parking is not only an amenity but a valuable commodity in modern life."
The above case does not suggest a shift in judicial attitude but perhaps represents movement in the attitude taken by parking operators to properly enforce their legal rights. While these rights have not necessarily always been enforced via the court system, in the right circumstances there is certainly no prohibition against doing so.
