Recovery of unpaid parking charges
442.This Part of the Act introduces a keeper liability scheme for the recovery of unpaid private parking charges. This Part provides that, subject to certain conditions being met, the keeper or the hirer of a vehicle may be made liable for any unpaid parking charge that has arisen by virtue of a “relevant obligation”.
443.A “relevant obligation” means that either: the driver of the vehicle has entered into a contract with a landowner and/or another person authorised to require payment of parking charges on the land in question (“relevant contract”); or, as a result of an obligation arising as a result of a trespass or other delict committed by parking the vehicle on the relevant land. At present, if a vehicle is parked on private land, for example in a private car park managed on behalf of a supermarket, only the driver can be held liable for any breach of contract or delict. As it may be difficult for the landowner or their agent to establish who was driving the vehicle at the relevant time, enforcing the parking charges can be problematic.
444.Keeper liability applies only to vehicles parked on “relevant land”. Section 94 defines this as excluding a “public road” as defined within the Roads (Scotland) Act 1984; parking places which are provided or controlled by the relevant roads authority or any land on which parking a vehicle is subject to statutory control. This could include, for example, land that is subject to byelaws applying to ports, airports and some railway station car parks.
445.Section 95 provides that the creditor has a right to recover unpaid parking charges from the keeper of the relevant vehicle if the conditions set out in sections 96, 97, 102 and 103 are satisfied and the vehicle was not a stolen vehicle when it was parked. The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (section 95(6)).
446.Section 96 sets out the first condition which is that the creditor must have the right to enforce the requirement to pay unpaid parking charges against the driver of a vehicle but is unable to do so because the creditor does not know the name and current address of the driver.
447.Section 97 sets out the second condition which is that the creditor must have served the appropriate notices as set out in sections 98, 99 and 100.
448.Section 98 sets out the requirements for a valid a notice to the driver. This must either have been given to the person in charge of the vehicle or affixed to the vehicle whilst it was still located on the land and comply with the requirements as prescribed by the Scottish Ministers in regulations.
449.In the event that the notice is not settled by the driver, section 99 sets out the requirements which must be followed in order to serve a subsequent notice on the keeper of the vehicle requiring payment of the unpaid parking charges. Section 99(4) requires any such notice to be given to the registered keeper of a motor vehicle, by such means as the Scottish Ministers may by regulations prescribe. The notice must be given within the period of 28 days following the period of 28 days beginning with the day after that on which the notice to the driver was given.
450.In the event that it is not possible to serve an initial notice on the driver of the vehicle (for example, if parking enforcement is carried out after the event via CCTV), section 100 sets out the requirements which must be adhered to when serving a first notice directly to the keeper of the vehicle.
451.Section 101 contains a power for the Scottish Ministers to prescribe in regulations any requirements as to the evidence which must accompany a valid notice to the keeper.
452.Section 102 sets out the third condition (which applies only to registered vehicles) which is that the creditor has applied to the Secretary of State (in practice, the Driver and Vehicle Licensing Agency (DVLA)) for the name and address of the keeper and that information has been provided.
453.Section 103 contains a power for the Scottish Ministers to prescribe in regulations any requirements for the display of notices on relevant land. The fourth condition is that if any such requirements are prescribed, they must have been complied with prior to the period of parking in question.
454.Section 104 contains provisions which are relevant to vehicle-hire firms who may receive notices as registered keepers of hire vehicles for charges incurred when those vehicles are, or have been, on hire. Section 104 provides that where the vehicle-hire firm provides the creditor with a statement confirming that the vehicle was hired at the relevant time, together with a copy of the hire agreement and a statement signed by the hirer confirming that the hirer agrees to be responsible for all parking charges incurred during the period of hire, it is the hirer of the vehicle who is liable for the unpaid parking charges and not the vehicle-hire firm. Section 105 sets out the procedure and requirements for the creditor to then serve a notice on the hirer of the vehicle to recover payment of the unpaid parking charges.
455.Section 106 provides that this Part does not apply to vehicles that are used or appropriated for use for naval, military or air force purposes or belong to any visiting forces at the relevant time.
456.Section 107 enables the Scottish Ministers to amend the definition of “relevant land” in section 94 and any of the conditions set out in sections 96, 97, 102 and 103. This would be by way of statutory instrument, which would, as a result of section 128(2), be subject to the affirmative procedure.
