However, PoFA 2012 only applies on 'relevant land', and PoFA 2012 specifically exempts land 'on which the parking of a vehicle is subject to statutory control'
This is further defined in paragraph 3(3)
‘For the purposes of sub-paragraph (1)(c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.’Paragraph 3(4) states that statutory provision includes byelaws.
Town Quay is subject to statutory control in the form of bylaws; byelaw 39 states:
“A person having charge of a vehicle in the dock estate shall at all times comply with any directions of ABP with respect to the loading, discharging, manoeuvring and removal thereof and shall not, without the permission of the ABP:-POPLA has ruled that condition (a) clearly relates to the parking of a vehicle.
a) Leave the vehicle unattended anywhere within the dock estate; or,
b) Take it into any shed or working area”.
Byelaw 62 provides that a contravention of the byelaws would lead to liability for a fine.
Clearly then, on this land keeper liability does not apply. POPLA have now ruled on this issue and assessor Chris Adamson has upheld an appeal on this basis. This result has been some time coming. Previous attempts to get POPLA to decide on this issue have resulted in creative attempts to evade the question and rule on other points instead.
ParkingEye have been made aware of the byelaws for some time. The DVLA has warned that it will suspend parking operators who claim keeper liability applies when it does not and so ParkingEye should be well aware that they are contravening their contract with the DVLA.
The Parking Prankster now waits to see what action the DVLA will take to correct this flagrant breach of the regulations.
If ParkingEye continue to issue parking charges on this site while claiming keeper liability exists, then they may be guilty of fraud or deceit. Section 2 of the Fraud Act 2006 establishes it is an offence to make false representation with a dishonest intention. The Prankster assumes they will soon modify their charge notices to avoid this problem.
The Parking Prankster