Be aware of a possible sting in the tail around Scotland’s private car park charges

Speak to a Citizen’s Advice Bureau for peace of mind, finds Paul Forrester Smith

On Facebook recently, some friends were posting about a supermarket requiring customers to enter car registration details on a terminal in the store and then scan their shopping receipt if the car park had been used. How it works in some instances is that cameras are used and if users of the car park don’t validate their parking in the store (as you might at a cinema or retails park for example) they will be sent an automatic parking charge.

Several people commented under the post that such private parking fines were illegal in Scotland. Not so, I’m afraid, and that potential confusion prompted me to review a case from earlier this year.

In the case of Vehicle Control Services Ltd v Mackie (Dundee Sheriff Court 13 January 2017), the unfortu- nate car owner was found liable to pay £24,500 in parking charges to the owners of a private car park.

The facts were that the car owner used a private car park attached to a development in which her parents were the tenants of a flat. The Deed of Conditions for the development allowed the owners to appoint factors to manage and maintain the development. They did so.

In turn, the factors appointed Vehicle Control Services (VCS) to manage and control the parking. Permits were available at no cost for residents to identify vehicles that were authorised to park on the property. Signs were clearly displayed stating that a charge would be levied if a parked vehicle did not display a permit. The charge which levied was £100 per day dis-

counted to £60 for payment within 14 days. The car owner did not have a permit, although her parents could havesoughtoneforheruse. Charges were levied for each day of unauthorised parking but these were not paid. Proceedings for payment were then raised. The action was defended and it was argued that there was no power to levy financial charges and that the factors’ contract with VCS was not valid.

The key legal findings were (i) that the owners had the power to appoint factors and in turn for factors to enter into the contract with VCS; (ii) the signs created a contract with the person who chose to park a vehicle as that person was deemed to have accepted the terms for parking and (iii) accordingly the defender was in breach of contract and obliged to pay the parking charges.

The Sheriff was not addressed on whether the contract term was a “penalty clause” or on the propriety of the scale of charges.

This decision refers to and agrees with comments in the Supreme Court case of Parkingeye Ltd (Respondent) v Beavis (Appellant) UKSC 2015.0116 in which the Court found that the objectives of owners protecting parking amenity and funding it through user charges to be “perfectly reasonable in themselves”. The Court found that the charge levied (£85 for being one hour over a two-hour parking limit) was not a penalty or unfair when balanced against the legitimate interest of the owners in preventing overstaying to efficiently manage the car park for the benefit of the owners. You will have become aware of such signs becoming more prevalent. If you are uncertain about where you stand on such matters you should speak to the Citizens Advice Bureau or take independent legal advice. Paul Forrester Smith is an Associate in Turcan Connell’s Dispute Resolution team