The poster describes how the parking attendant hid in his car while large numbers of motorists parked on the grass. Once they had left, an orgy of ticketing ensued. When returning motorists complained, the attendant phoned the boss of AS Parking, Kevin Macmanus an ex night-club bouncer. It was reported the attendant was told to continue ticketing or lose his job.
It is lucky AS Parking belong to the BPA Ltd and not the IPC as predatory practices are outlawed by the IPC Code of Practice.
14. Predatory Tactics
14.1 You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system as defined in schedule 2 to the Code.
The BPA Ltd does not outlaw predatory practices in its Code of Practice.
The courts however, side with the IPC. They have ruled that attendants must mitigate loss, and that if they are in a position to prevent a breach of contract, they must do so. Hiding in a car and ticketing later would not be allowed by the courts. Judge McIlwaine explained it this way in VCS v Ibbotsen
JUDGE McILWAINE: Will you please correct me if I am wrong? I believe that there is a concept of mitigation of loss. Is that not the case?The car park in question is on the Trewetha Road and is owned by the Endellion Parish Council. They have apparently designated this as subject to an off street parking order under the road traffic act 1984. This would then make it statutory land, and keeper liability would therefore not apply using the Protection of Freedoms Act 2012.
MISS COATES: It is, sir.
JUDGE McILWAINE: Whose duty is it to mitigate the loss?
MISS COATES: The claimant's.
JUDGE McILWAINE: Thank you, and so if on the evidence of Mr Ibbotson, which has not been challenged, the parking attendant was there and saw Mr Ibbotson walking away, whilst it may not be his responsibility to stop him walking away, as he is a lawful authorised member of the company at the time he is there and there is a duty to mitigate the loss, can you explain to me why he did not say to Mr Ibbotson, "You can walk off, not a problem, 80 quid"?
There are some doubts in The Prankster's mind. Firstly, the off street order refers to 'The Main Car Park', Port Isaac. The Prankster is unsure which the main car park in Port Isaac is. Apparently there is another council car park just down the road. The Prankster would appreciate anyone with local knowledge getting in touch to clear this up.
Secondly, it is not clear whether the Parish Council have the authority to make this order. One poster, matt285, on pepipoo has indicated they can, but may have messed up.
(hereinafter referred to as ‘The Act 1984’)
This quote alone shows to me that we're dealing with amateurs here. No statutory reference I have EVER seen is phrased like this. It always says "the 1984 Act" rather than "the Act 1984".
Further, there is no Act currently in existence which is called "Road Traffic Act 1984". The closest I found is the "Road Traffic Regulation Act 1984".
I am mildly surprised that a Parish Council can issue Road Traffic Orders in the first place, but looking at s.59 of that latter Act I believe they may be able to do so.
But - is an Order which claims to be based on a non-existant Act a valid Order? I believe not.
So I think this land is not under statutory control because this Order is not valid. Apart from that it also fails to omit who this mysterious Enforcement Agency is who can enforce those penalties. This is all a big piece of bollox that was put together by some amateur parish councillors trying to be clever.
So - this may be relevant land under POFA after all.Probably the best solution would be for any motorist issued a ticket on this land to complain to the DVLA including a copy of the order.
The Prankster also notes that the order allows cars to park outside marked bays as long as they are not causing an obstruction. Cars tidily parked on the grass are therefore not contravening the conditions. If your car was not parked causing an obstruction then you should also complain to the DVLA that there were no grounds to issue the ticket as the conditions were not breached.
The Prankster also notes that although the council do not want cars parked on the grass, they have failed to put the planned barriers in place to enforce this, allowing AS Parking to rake in £5k in tickets a day according to some calculations.
The DVLA's stance on the matter is that they will not issue keeper data to companies pursuing claims under POFA 2012 when this Act does not apply. Robert Toft, Head of Data Sharing Policy Group, makes this clear in a letter dated 21 August explaining that ParkingEye are under investigation for issuing tickets at Southampton Quay.
Although ParkingEye continue to issue tickets at Southampton Quay, they are putting tickets on hold if motorists appeal. It is not clear whether the DVLA will force ParkingEye to refund paid tickets once their investigation is over.
The Parking Prankster
The Prankster thanks the people who did all the research legwork for this blog post.