Alan Cameron | Senior Associate

Parking… a valuable (or expensive) commodity

Many will have heard of the recent landmark ruling by a Scottish Court where a 24 year old Dundee “resident” was ordered to pay £24,500 in unpaid parking fines. The award was the largest in the UK in cases of this nature but the decision Dundee Sheriff, Sheriff Way is a wake-up call for those who believed that there was no legal basis for a claim in relation to parking fines issued by private firms on private land.

The Pursuer in the action, Vehicle Control Services Ltd raised an action against Miss Mackie as she has previously ignored over 200 parking fines as she, like many others, believed that they were not enforceable as she had parked on private land at her parents’ property at Rivercourt, Dundee. Unfortunately Miss Mackie now has to find a way to make payment of the sum of £24,500 with interest and expenses.

The background to the case is that Miss Mackie’s parents are the tenants of the property at Rivercourt, Dundee which is a new build development. There are common areas of ownership at the property which includes parking spaces and amenity grounds. Some residents at the development have garages forming part of their title, others have the benefit of an allocated space and some simply have a communal right of parking in designated areas. Like many developments, there is a deed of conditions which deals with overall maintenance of the properties, parking spaces and common areas. As tenants (and although not owners), Miss Mackie’s parents were bound by the terms of the deed of conditions so long as their lease was in existence. As is common course, factors were appointed to manage the common scheme and had a degree of judgement in respect of maintenance of the development as a whole.

The deed of conditions restricted parking within the property even for residents and there was insufficient public parking in the area. Parking could be accessed by anyone, at any time as it was not closed off by gates or barriers. Understandably, as a number of non-residents were parking within the development, residents had asked the factors to take action to address this issue. The factors then entered into contracts with the pursuers, Vehicle Control Services for them to provide parking management solutions within the development. The contract set out parking control schemes which prevented those without permits from parking within the locality of the property. Owners and tenants were not charged for the use of the permits and permits could be used by anyone at any time. The purpose of the permits was to enforce parking control and a vehicle which did not display a permit would be deemed to be parking without a right and therefore a notice would be attached to the car windscreen. Signs were displayed through entrance points to the property informing all those who entered that a vehicle without a permit would be subject to a parking restriction and fine. The notices detailed that the charges would be £100 per day which would be reduced to £60 if paid within 14 days of the date of issue.

While Miss Mackie’s parents had a designated garage within the property, their rights derived from the landlord as an owner. Miss Mackie was not named on the tenancy agreement and so was a casual resident at her parents’ home. She had no right or title to use the parking area and her parents did not ask for a permit to be provided to her. Somewhat surprisingly, Miss Mackie did not give evidence during the evidential hearing in the case as her father, Mr Hill did so on her behalf. Mr Hill confirmed that he told his daughter to park within the development and did so as he believed that the factors did not have authority to create or enforce the parking scheme or enter into a contract with Vehicle Control Services. The only parking areas where he thought restrictions were enforceable were the areas which were assumed by Dundee City Council. Miss Mackie’s father accepted that the Council had legislative authority to restrict parking and to levy charges in relation to that, however, he did not think that the factors or Vehicle Control Services had any such authority.

The Sheriff notes that Mr Hill was very clear throughout his evidence that Miss Mackie simply ignored the penalty notices. Ultimately the Sheriff thought that Miss Mackie was wrong in this assessment, in thinking that there was no valid contract and that the penalty notices could not be enforced. The Sheriff’s position was that Miss Mackie was no better and had no greater right or title to park in relation to the property than any layman, and therefore she was liable in the agreed sum of £24,500.

The Sheriff stated that Miss Mackie had entirely misdirected herself both in the law and the contractual chain in relation to the case. The Sheriff’s view was that the Pursuers had a valid contract and could take any enforcement action they chose in relation to that. The Sheriff also referred to the fact that the factors had a duty to create revenue to meet costs which would otherwise be borne by the residents themselves. The Sheriff’s view was therefore that the factors had the right to protect the private property and engage the services of Vehicle Control Services. While the sums seem excessive, the Sheriff did make reference to the fact that Miss Mackie did not put forward any submissions in relation to whether or not the charges were excessive and in fact, this sum had been agreed prior to the Proof, with only evidence being led on the merits of the legal basis of the case.

It’s yet to be seen whether there will be similar cases in Scotland on this issue. It seems unlikely that there will be another case with such significant sums involved but Miss Mackie’s case is a reminder that drivers should not simply ignore private parking fines as by deciding to park a vehicle in a car park where clear notices are displayed, they are deemed to have agreed to those terms and conditions. It will also be interesting to see whether Scotland will follow suit with England and Wales and establish an independent ombudsman to act as a second point of appeal. We will be keeping up to date!

http://www.bbc.co.uk/news/uk-scotland-tayside-central-39478203

Alan Cameron

Alan Cameron

Dispute Resolution Team

“My motto is: ‘First they ignore you, then they ridicule you, then they fight you, and then you win.’”

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