The establishment of a parking right can have a significant impact on the value of the land affected. A recent Scottish case has highlighted the nuances of parking law, reiterating its complexities and the need for care and consideration, especially when purchasing or remortgaging land in Scotland.
Vehicle Control Services Limited v Carly Mackie (2017) shows that private landowners are able to enforce fines against those who park without permission as long as the correct notices are set out to this effect.
Insufficient parking space in the local area led to significant problems with members of the public parking within a major private development at the Waterfront District of Dundee. As a result, a privately managed permit scheme was introduced. It allowed the appointed managing company of the car park to issue parking tickets to individuals who did not exhibit the required permit. Notices were placed around the development setting out the terms and conditions of parking, including the penalties for parking without a permit.
The issue arose as Ms Mackie parked outside her father’s house within the development with no public parking rights.She was later issued with fines of up to £24,500. Ms Mackie disputed the fines and the matter ended up in front of the Court.
In this case, the Court decided in favour of the managing company and confirmed that a contract had been created between the parties. Ms Mackie was therefore liable to pay the total amount of her parking fines.
The Court affirmed that in Scotland parking fines issued by private companies are enforceable, so long as appropriate signage with the terms and conditions of use is clearly displayed.
By parking in a car park which has such signage, the driver is taken to have accepted these and a contract is created.
In Scottish law, servitudes can be created in a number of ways, including by express grant, implied grant or prescription. Adding to this confusion is the decision in Moncrieff v Jamieson (2007), where the House of Lords held that a person owning land at the foot of a sea cliff could park their car at the top of the cliff, on land owned by someone else. It was held that a servitude right of vehicular parking was capable of existing in law as an ancillary right to a primary servitude right of vehicular access.
One consideration for legal professionals where parking rights are an issue is the possibility of title insurance. Following the decision in Moncrieff, cover is largely considered favourable in Scotland.
Where a parking right over land has been exercised without objection, payment or force, title insurance can act as a helpful tool for all parties in mitigating against this complex area of risk.