There is a widespread misbelief that parking charges issued by the owners (or operators) of carparks on private land are unenforceable. However, recent case law in Scotland has confirmed that landowners here have a right to charge parking penalties, and can enforce such charges, for breach of contract by those who choose to park on their land.
For the parking penalty to be enforceable, the following steps should be taken:
- Ensure that the terms and conditions of the parking facility are displayed accurately throughout the carpark, particularly at all entrances;
- The charges payable for failing to comply with the terms and conditions should be clearly stated (for example, the charge for not displaying a valid permit); and
- The charge payable should be proportionate to the interest. Current case law indicates that charges of up to £100 will be considered reasonable by the court as this is in line with the Code of Practice of the British Parking Association.
If all of these steps are followed, then a valid and enforceable contract is created between the owner (or operator) of the carpark and the driver. In Scotland, contracts do not have to be in writing. So when a driver parks in a private carpark where there are visible signs outlining the terms and conditions, they are taken to have accepted these and a contract is formed. In 2015, the Supreme Court held that such parking charges were enforceable where they had been brought to the clear attention of the driver, and where the charge is not excessive. Earlier this year, Dundee Sheriff Court followed the Supreme Court’s ruling and found a woman liable to pay £24,500 in outstanding parking charges. She had ignored the parking terms and conditions and believed that the tickets she had been issued were illegal and unenforceable. There were signs at the entrances to the development that warned drivers that they were entering private land where parking is controlled and that charges of £100 per day would be issued for failure to display a valid permit. However, by choosing to park her car, it was found that she had accepted the terms and conditions, the charges therefore arose from a valid contract and so had to be paid.
It is clear that the requirements set out above must be met for charges to be upheld. So to ensure that a valid contract can be created and that penalties can be enforced, it is essential that all carpark signage is accurate and sufficiently visible so that those who choose to park in the carpark are in no doubt about the conditions of doing so.