“Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

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“Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by Gareth Thomas »

https://www.kentonline.co.uk/medway/new ... ts-253733/

The drivers have been using the “unofficial junction” at Medway services.

Thoughts?
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by domcoop »

Legally speaking, the issue of "penalty" charges being imposed by a contract between somebody controlling access to land for the purpose of parking, and the driver of a vehicle who uses that land, was analysed by the Supreme Court in the case of Beavis -v- Parkingeye Limited, in 2015. The Supreme Court held that an operator of access to land it entitled to levy such a charge if they have a legitimate interest in controlling access and managing the car park, and if the amount levied is not out of all proportion to their interests. It's dubious in my opinion, but it's the law.

The way common law works in England and Wales, if a case regarding using an access road without parking were ever to get to court, I would think it almost certain (not definite, but nearly) that the court would find the operator of the scheme has a legitimate interest in deterring unnecessary use of its road.

But that only gets them so far. This is because the legal theory behind this is one or both of the following. Either the driver of the car reads a sign and enters into a contract with the operator under which the driver agrees to follow the conditions set out in the contract; and / or the driver trespasses on the operator's land (assuming the operator owns the land or acts as agent for the owner) on terms which there is an agreed fee payable for breaching the contract and trespassing. I have highlighted the important words.

To win, the operator has to prove, on the balance of probability, that they have identified an actual person; that the person they identified was driving the vehicle; that the driver read the signs; that the driver agreed to the terms written on the signs.

Thing is, they usually can't do this. They usually have number plate cameras and have the number plate of a car and a time of entry and a time of exit. That's it. From the number plate, they can get the registered keeper's name and address. Registered keeper says it wasn't his / her car? Well the operator can't prove otherwise (unless they perhaps employ a private investigator to gather other evidence). Registered keeper says he / she wasn't driving? Again, the operator can't prove otherwise. Registered keeper says he / she might have been driving, but it might have been his / her spouse? Same thing - and the burden of proof in court is on the operator.

Or the person admits they are the driver but says they didn't see the signs. Again, operator has to prove they did. In car parks they put lots of signs at regular intervals and use the argument that people parking are usually expected to look at the signs to see what the terms of parking are. On a through road? That's more difficult.

To avoid these problems, legislation was passed in 2012 whereby private wheelclamping was banned in England and Wales in return for a scheme whereby a registered keeper would legally be liable for whatever the driver was liable for if they do not name the driver and if certain conditions are met. These conditions include rules as to signage and membership of an approved trade body with a right of appeal. Some parking operators don't use the scheme and just rely on the pre-2012 case law.

The Protection of Freedoms Act scheme does not apply to driving on a road though. It specifically refers to parking. So the pre-2012 case law would apply to unauthorised use of a road for driving on it (rather than parking on it).

Now I said earlier that some operators don't use the scheme anyway. The reason is this. If they write an official looking letter to the registered keeper, peppered with bold text in red highlighting saying "OFFICIAL WARNING TO REGISTERED KEEPER" and "NOTICE OF PENALTY CHARGE",etc (things that operators using the scheme are restricting from doing, by the way), your average person thinks it's official. They won't know (or have the time to look up) the law in the way I have written it above. So some will just pay it. Eventually, the operator will take some to court by issuing County Court claim forms. Some people will see the forms, not want the hassle and pay them. Some will write into the court saying "it's not fair I was only going to do XYZ and I didn't do ABC this should not be allowed". The court couldn't care less about these letters, but the operator does as they can use it as evidence against the person that they were, in fact, the driver. Some will not respond as they moved house or didn't get the form, or clammed up. They'll get a judgment registered against their credit file, and will find it difficult to remove without evidence as to who the driver actually was (because then the burden of proof is on them, not the operator.) Some will go to court and win, but the operator will get enough money doing this that the cost of following the official scheme is not worth it.

The operator of the "unofficial junction" will be following this path, unfortunately. If any actually get to court with a contested hearing before a judge with a person who either hasn't admitted they were the driver, or has admitted that but said they didn't see the signs, that person will win. But for every one who wins, there'll be tens or hundreds who either lose or pay up.

If you did use this junction, and get a letter from the operator, best bet is ignore it. And the five or six reminders that come. In the unlikely event they take it to court, don't go to the press (and admit you were the driver) or write a rant to the court staff (who won't read it, and will pass it on to the operator, thus providing evidence you were the driver). Instead file a defence saying "(1) the Defendant is unable to admit nor deny whether they were the driver of the vehicle, and the Claimant is put to strict proof of the identity of the driver, the Defendant noting that no evidence has been provided that the Defendant is anything other than the Registered Keeper of the vehicle on a certain date. (2) Furthermore or alternatively, the Defendant denies that the circumstances of the event and the nature and location of the lengthy and detailed signage (which it would be impossible to read whilst driving) at the entrance to a road not used for the purposes of parking could have the legal consequences of the driver entering into a contract which the Claimant contends for. Accordingly the Claimant is required to prove that any driver could enter into a contract by driving past such a sign without being either a) expect to read it (it not being a car park), or b) able to read it (given the text size and likely speed of a likely driver passing it)."
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by jnty »

Surely the contract which drivers enter into on reading private parking signs (unless specifically modified for these circumstances) only refers to parking? If so, then the fact that vehicles can practically (if 'naughtily') be moved out of the car park without being captured by the cameras is surely the car park's problem - as it invalidates the assumptions underpinning their evidence - not the drivers'.
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by baroudeur »

Oh dear - drivers who use private accesses for their convenience then complain when they get caught.

A land owner has every right to control access. Whilst a few signs may be incomprehensible, in the main, the majority of offending drivers have chosen to ignore them.

The sooner legislation brings private parking control under the same legislation as LA parking control the better - it's long overdue.

Edit: I was generalising.

Having now looked at Medway MSA on GSV the entry to the service road onto the coast bound service area has no signs and at the exit from the parking area onto the service road there is this sign https://tinyurl.com/24tnvcbw

At the service road entrance into the London bound side there is only a sign for the Travel Lodge hotel and leaving the service area parking onto the service road there is a sign stating 'for hotel guests only'.

Entry via the service access roads on both sides of the MSA has no restricting signage whereas leaving the parking areas into the service roads has signs attempting some form of control.

Are employees' vehicles white-listed and, if not, how are their vehicles controlled?
Last edited by baroudeur on Mon Sep 13, 2021 16:09, edited 1 time in total.
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by Micro The Maniac »

Bus lane/gate cameras permit the authorities to capture minor infractions (never mind bigger infringements)...

The obvious answer in this case is to introduce access controls to the road... eg ANPR controlled barriers
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by Micro The Maniac »

baroudeur wrote: Mon Sep 13, 2021 15:40 The sooner legislation brings private parking control under the same legislation as LA parking control the better - it's long overdue.
Agreed... such as cases like that of a friend, who lives near to the station and regularly has people parking on their driveway all day, but can do nothing about it
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by Ruperts Trooper »

Micro The Maniac wrote: Mon Sep 13, 2021 15:50
baroudeur wrote: Mon Sep 13, 2021 15:40 The sooner legislation brings private parking control under the same legislation as LA parking control the better - it's long overdue.
Agreed... such as cases like that of a friend, who lives near to the station and regularly has people parking on their driveway all day, but can do nothing about it
Removeable bollards should work but that's extra time for him/her when leaving or entering - as well as the cost of installation.
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by baroudeur »

Micro The Maniac wrote: Mon Sep 13, 2021 15:50
baroudeur wrote: Mon Sep 13, 2021 15:40 The sooner legislation brings private parking control under the same legislation as LA parking control the better - it's long overdue.
Agreed... such as cases like that of a friend, who lives near to the station and regularly has people parking on their driveway all day, but can do nothing about it
A case of trespass. Why would private parking or council parking be involved in such cases?

Of course, renting the driveway could be profitable as some have found!
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by domcoop »

baroudeur wrote: Mon Sep 13, 2021 15:40 Oh dear - drivers who use private accesses for their convenience then complain when they get caught.

A land owner has every right to control access. Whilst a few signs may be incomprehensible, in the main, the majority of offending drivers have chosen to ignore them.

Edit: I was generalising.
Legally speaking, the sign would have to contain all the terms and conditions of use of the road to permit them to levy a charge. Similar to this example of a parking notice, but obviously worded for travelling through without authorisation.

Highway Code TSRGD signs have no meaning on private land (which is what this is). They could give rise to liability if you crashed by going the wrong way, e.g. on the grounds you were negligent, but it couldn't make you liable to pay a penalty to the operator.

And no driver is going to be able to read what's written in a sign like the parking example whilst driving past it. Ever.

(I *suppose* they could have a large sign saying "DO NOT PASS IF NOT AUTHORISED - TERMS AND CONDITIONS APPLY (see nearby sign for details)" to put the driver on notice to stop, get out, and read the detailed sign).

But in reality most of these places have moved to automatic bollards / barriers, for the reason that it's technically unenforceable. The same applied at Charnock Richard services and there's one at Forton too (street view shows that's still open but it's been a long while since I've been up there and seen it in real life).
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by baroudeur »

Micro The Maniac wrote: Mon Sep 13, 2021 15:48 Bus lane/gate cameras permit the authorities to capture minor infractions (never mind bigger infringements)...

The obvious answer in this case is to introduce access controls to the road... eg ANPR controlled barriers
Toddington MSA, where my son was a manager, tried that - several times - but it only lasted a few weeks. Access for police, 24/7 staff, hotel guests and deliveries creates major problems. The access is uncontrolled these days unless unlucky enough to meet a police traffic car.

Some locations have tried rising bollards but removed them after several serious accidents. Even LAs find rising bollards are unworkable e.g. Bedford and Cambridge to name two.
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by Bomag »

RTRA 1984 and therefore TSRGD applies to all roads the public has 'free' access (unrestricted and not ££). Ownership of the land is immaterial; all traffic signs in MSAs have to be prescribed or authorised. Any statement that traffic signs have no meaning on private land is not correct.
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by Micro The Maniac »

baroudeur wrote: Mon Sep 13, 2021 16:14 A case of trespass. Why would private parking or council parking be involved in such cases?
We have suggesting that a couple of the (ahem) local scroats should start nicking it... it would be a pity if it turned up outside the fire station, on fire?
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by M4 Cardiff »

Also, for a penalty charge (civil matter) as opposed to a fine for a traffic offense, where would one stand if they used the exit in error? Certainly the one westbound is quite easy to use in error if you are not familiar with the layout there. I have gone up there before by mistake and had to turn round. A whacking great penalty that is hard to appeal, for a simple error where the exit there is poorly signed is certainly unfair, no matter how much the owners wish to discourage unauthorised shortcutting and probably also NH/HE (whatever they call themselves this week) pressuring them to do something to stop the use as MSA's are not allowed to be unoficcial juntions by law.
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by domcoop »

Bomag wrote: Mon Sep 13, 2021 16:40 RTRA 1984 and therefore TSRGD applies to all roads the public has 'free' access (unrestricted and not ££). Ownership of the land is immaterial; all traffic signs in MSAs have to be prescribed or authorised. Any statement that traffic signs have no meaning on private land is not correct.
I don't think this is correct. You may be thinking of case law concerning drink driving and driving without insurance, which does indeed apply to a "road or other public place" (see sections 4(1) and 143 Road Traffic Act). Bear in mind that in England and Wales there are differing concepts of public highways, non-public highways, roads maintainable at the public expense, special roads and just "road".

The starting point is section 36 of the Road Traffic Act 1988 (not RTRA). This is what makes it a criminal offence for a driver not to comply with a sign. (RTRA specifying what the sign must be and the procedure involved for it to be placed). Subsection 2 states that a driver is only committing an offence by ignoring a sign if the sign was lawfully placed and goes on to say that the indication given by the sign must be an indication of a "statutory prohibition, restriction or requirement". This is your first hurdle, since you are going to have to find a lawfully made Traffic Regulation Order that gives rise to the no entry other than specified persons. There may well be such a restriction applying between the public highway and the road; there won't be one between the motorway service area and the road though.

If there was such a TRO, the next hurdle is that the sign would have to be the correct and prescribed sign. I'll give a tenner to anyone who can find a correct and prescribed sign in a motorway service area! Even the streetview image above is clearly not a prescribed sign. (Let's leave derogations out of this, although I know for a fact there is not such derogation as I happened to be looking at the list on the DfT website not so long ago).

Let's assume that hurdle was passed, the next thing to consider is section 64 of the Road Traffic Regulation Act. This says that signs may only be placed on roads by someone who is authorised to do so. There is a list of people authorised to do so. The highway authority, the police, certain special exemptions (harbourmasters and tramway operators) and the Secretary of State are listed. Moto, Welcome Break, etc., are not on the list.

Then finally, even if we get past all those hurdles, the issue here is a private company called "CP Plus" purporting to levy charges as a result of what would be - if you were right - criminal offences. There is no law that permits them to do that. In fact, I'm not sure of any law that permits anyone to do that. (Although I know that the railway tries it on quite a lot, as do some supermarkets, but they get away with it as they can privately prosecute someone who doesn't comply, whereas "CP Plus" can't because they don't have the power to serve a Notice of Intended Prosecution and demand information under section 172 Road Traffic Act - only the police do)

Sorry for the overlong explanation!
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by fras »

Surely it would be easier to just charge a toll for using the road ?
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by trickstat »

fras wrote: Mon Sep 13, 2021 22:15 Surely it would be easier to just charge a toll for using the road ?
I'm not sure because you would have all the admin of ensuring that people like MSA and Travelodge staff and deliveries are not charged.
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by BigBazz »

Looking at the Travelodge site, unlike Heston they're actively promoting use of the "back exit" at Medway to access the Travelodge from the Eastbound side!

Linky: https://www.travelodge.co.uk/hotels/53/Medway-M2-hotel
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by KeithW »

domcoop wrote: Mon Sep 13, 2021 14:40 Legally speaking, the issue of "penalty" charges being imposed by a contract between somebody controlling access to land for the purpose of parking, and the driver of a vehicle who uses that land, was analysed by the Supreme Court in the case of Beavis -v- Parkingeye Limited, in 2015. The Supreme Court held that an operator of access to land it entitled to levy such a charge if they have a legitimate interest in controlling access and managing the car park, and if the amount levied is not out of all proportion to their interests. It's dubious in my opinion, but it's the law.
Medway services eastbound though is a bit of an oddity as there is no prohibition against using the back entrance, indeed the Travelodge is signed from local roads. There is also an overbridge so traffic can access it from the westbound side.
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by Bomag »

domcoop wrote: Mon Sep 13, 2021 20:39
Bomag wrote: Mon Sep 13, 2021 16:40 RTRA 1984 and therefore TSRGD applies to all roads the public has 'free' access (unrestricted and not ££). Ownership of the land is immaterial; all traffic signs in MSAs have to be prescribed or authorised. Any statement that traffic signs have no meaning on private land is not correct.
I don't think this is correct. You may be thinking of case law concerning drink driving and driving without insurance, which does indeed apply to a "road or other public place" (see sections 4(1) and 143 Road Traffic Act). Bear in mind that in England and Wales there are differing concepts of public highways, non-public highways, roads maintainable at the public expense, special roads and just "road".

The starting point is section 36 of the Road Traffic Act 1988 (not RTRA). This is what makes it a criminal offence for a driver not to comply with a sign. (RTRA specifying what the sign must be and the procedure involved for it to be placed). Subsection 2 states that a driver is only committing an offence by ignoring a sign if the sign was lawfully placed and goes on to say that the indication given by the sign must be an indication of a "statutory prohibition, restriction or requirement". This is your first hurdle, since you are going to have to find a lawfully made Traffic Regulation Order that gives rise to the no entry other than specified persons. There may well be such a restriction applying between the public highway and the road; there won't be one between the motorway service area and the road though.

If there was such a TRO, the next hurdle is that the sign would have to be the correct and prescribed sign. I'll give a tenner to anyone who can find a correct and prescribed sign in a motorway service area! Even the streetview image above is clearly not a prescribed sign. (Let's leave derogations out of this, although I know for a fact there is not such derogation as I happened to be looking at the list on the DfT website not so long ago).

Let's assume that hurdle was passed, the next thing to consider is section 64 of the Road Traffic Regulation Act. This says that signs may only be placed on roads by someone who is authorised to do so. There is a list of people authorised to do so. The highway authority, the police, certain special exemptions (harbourmasters and tramway operators) and the Secretary of State are listed. Moto, Welcome Break, etc., are not on the list.

Then finally, even if we get past all those hurdles, the issue here is a private company called "CP Plus" purporting to levy charges as a result of what would be - if you were right - criminal offences. There is no law that permits them to do that. In fact, I'm not sure of any law that permits anyone to do that. (Although I know that the railway tries it on quite a lot, as do some supermarkets, but they get away with it as they can privately prosecute someone who doesn't comply, whereas "CP Plus" can't because they don't have the power to serve a Notice of Intended Prosecution and demand information under section 172 Road Traffic Act - only the police do)

Sorry for the overlong explanation!
While slightly simplistic my point was correct, the restriction on placing signs depends on whether the sign is being placed on a highways or road. For private roads open to the public it is the roads owner who is liable for compliance with traffic signs law.
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Re: “Medway Moto Services on M2 near Rainham under fire over 'unfair and greedy' parking fines”

Post by Vierwielen »

Micro The Maniac wrote: Mon Sep 13, 2021 15:48 Bus lane/gate cameras permit the authorities to capture minor infractions (never mind bigger infringements)...

The obvious answer in this case is to introduce access controls to the road... eg ANPR controlled barriers
Or as an alternative, introduce toll barriers with tags available to regular users. There might be a case for the government to coordinate standard tags for certain users - emergency service vehicles that can be used anywhere in the country.
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