Protection of Freedoms Bill (HL Bill 128)

(b) associated powers,

in relation to matters within the legislative competence of the National
Assembly for Wales.

(2) Such a code may, in particular, include provision about—

(a) 5considerations before exercising, or when exercising, any such
powers,

(b) considerations after exercising any such powers (such as the
retention of records, or the publication of information, about the
exercise of any such powers).

(3) 10Such a code—

(a) need not contain provision about every type of power of entry or
associated power,

(b) may make different provision for different purposes.

(4) In the course of preparing such a code in relation to any powers, the Welsh
15Ministers must consult—

(a) such persons appearing to the Welsh Ministers to be representative
of the views of persons entitled to exercise the powers concerned as
the Welsh Ministers consider appropriate, and

(b) such other persons as the Welsh Ministers consider appropriate.

20Issuing of code

2 (1) The Welsh Ministers must lay before the National Assembly for Wales—

(a) any code of practice prepared under paragraph 1, and

(b) a draft of any order providing for the code to come into force.

(2) The Welsh Ministers may make the order and issue the code if the draft of
25the order is approved by a resolution of the National Assembly for Wales.

(3) The Welsh Ministers must not make the order or issue the code unless the
draft of the order is so approved.

(4) The Welsh Ministers may prepare another code of practice under paragraph
1 if the draft of the order is not so approved.

(5) 30A code comes into force in accordance with an order under this paragraph.

(6) Such an order—

(a) is to be a statutory instrument, and

(b) may contain transitional, transitory or saving provision.

Alteration or replacement of code

3 (1) 35The Welsh Ministers—

(a) must keep the devolved powers of entry code under review, and

(b) may prepare an alteration to the code or a replacement code.

(2) Before preparing an alteration or a replacement code in relation to any
powers, the Welsh Ministers must consult—

(a) 40such persons appearing to the Welsh Ministers to be representative
of the views of persons entitled to exercise the powers concerned as
the Welsh Ministers consider appropriate, and

(b) such other persons as the Welsh Ministers consider appropriate.

(3) The Welsh Ministers must lay before the National Assembly for Wales an
alteration or a replacement code prepared under this paragraph.

(4) If, within the 40-day period, the National Assembly for Wales resolves not
to approve the alteration or the replacement code, the Welsh Ministers must
5not issue the alteration or code.

(5) If no such resolution is made within that period, the Welsh Ministers must
issue the alteration or replacement code.

(6) The alteration or replacement code—

(a) comes into force when issued, and

(b) 10may include transitional, transitory or saving provision.

(7) Sub-paragraph (4) does not prevent the Welsh Ministers from laying a new
alteration or replacement code before the National Assembly for Wales.

(8) In this paragraph “the 40-day period” means the period of 40 days beginning
with the day on which the alteration or replacement code is laid before the
15National Assembly for Wales.

(9) In calculating the 40-day period, no account is to be taken of—

(a) any period during which the National Assembly for Wales is
dissolved, and

(b) any period of more than four days during which the National
20Assembly for Wales is in recess.

(10) In this paragraph “the devolved powers of entry code” means any code of
practice issued under paragraph 2(2) (as altered or replaced from time to
time).

Publication of code

4 (1) 25The Welsh Ministers must publish any code issued under paragraph 2(2).

(2) The Welsh Ministers must publish any replacement code issued under
paragraph 3(5).

(3) The Welsh Ministers must publish—

(a) any alteration issued under paragraph 3(5), or

(b) 30the code or replacement code as altered by it.

Effect of code

5 (1) A relevant person must have regard to the devolved powers of entry code
when exercising any functions to which the code relates.

(2) A failure on the part of any person to act in accordance with any provision
35of the devolved powers of entry code does not of itself make that person
liable to criminal or civil proceedings.

(3) The devolved powers of entry code is admissible in evidence in any such
proceedings.

(4) A court or tribunal may, in particular, take into account a failure by a
40relevant person to have regard to the devolved powers of entry code in
determining a question in any such proceedings.

(5) In this paragraph “relevant person” means any person specified or described
by the Welsh Ministers in an order made by statutory instrument.

(6) An order under sub-paragraph (5) may, in particular—

(a) restrict the specification or description of a person to that of the
5person when acting in a specified capacity or exercising specified or
described functions,

(b) contain transitional, transitory or saving provision.

(7) So far as an order under sub-paragraph (5) contains a restriction of the kind
mentioned in sub-paragraph (6)(a) in relation to a person, the duty in sub-
10paragraph (1) applies only to the person in that capacity or (as the case may
be) only in relation to those functions.

(8) Before making an order under sub-paragraph (5) in relation to any person or
description of persons, the Welsh Ministers must consult such persons
appearing to the Welsh Ministers to be representative of the views of the
15person or persons in relation to whom the order may be made as the Welsh
Ministers consider appropriate.

(9) No instrument containing the first order under sub-paragraph (5) is to be
made unless a draft of it has been laid before, and approved by a resolution
of, the National Assembly for Wales.

(10) 20Subject to this, an instrument containing an order under sub-paragraph (5)
is subject to annulment in pursuance of a resolution of the National
Assembly for Wales.

Interpretation

6 In this Schedule—

• 25“the devolved powers of entry code” has the meaning given by
  paragraph 3(10),

• “power of entry” and “associated power” have the meaning given by
  section 46.

Section 56

SCHEDULE 4 30Recovery of unpaid parking charges

Introductory

1 (1) This Schedule applies where—

(a) the driver of a vehicle is required by virtue of a relevant obligation to
pay parking charges in respect of the parking of the vehicle on
35relevant land; and

(b) those charges have not been paid in full.

(2) It is immaterial for the purposes of this Schedule whether or not the vehicle
was permitted to be parked (or to remain parked) on the land.

2 (1) In this Schedule—

• 40“the appropriate national authority” means—

  Protection of Freedoms BillPage 133

  (a)

  in relation to relevant land in England, the Secretary of State;
  and

  (b)

  in relation to relevant land in Wales, the Welsh Ministers;

• “the creditor” means a person who is for the time being entitled to
  5recover unpaid parking charges from the driver of the vehicle;

• “current address for service” means—

  (a)

  in the case of the keeper, an address which is either—

  (i)

  an address at which documents relating to civil
  proceedings could properly be served on the person
  10concerned under Civil Procedure Rules; or

  (ii)

  the keeper’s registered address (if there is one); or

  (b)

  in the case of the driver, an address at which the driver for the
  time being resides or can conveniently be contacted;

• “driver” includes, where more than one person is engaged in the
  15driving of the vehicle, any person so engaged;

• “keeper” means the person by whom the vehicle is kept at the time the
  vehicle was parked, which in the case of a registered vehicle is to be
  presumed, unless the contrary is proved, to be the registered keeper;

• “notice to driver” means a notice given in accordance with paragraph 7;

• 20“notice to keeper” means a notice given in accordance with paragraph
  8 or 9 (as the case may be);

• “parking charge”—

  (a)

  in the case of a relevant obligation arising under the terms of
  a relevant contract, means a sum in the nature of a fee or
  25charge, and

  (b)

  in the case of a relevant obligation arising as a result of a
  trespass or other tort, means a sum in the nature of damages,

  however the sum in question is described;

• “registered address” means, in relation to the keeper of a registered
  30vehicle, the address described in paragraph 11(3)(b) (as provided by
  the Secretary of State in response to the application for the keeper’s
  details required by paragraph 11);

• “registered keeper”, in relation to a registered vehicle, means the
  person in whose name the vehicle is registered;

• 35“registered vehicle” means a vehicle which is for the time being
  registered under the Vehicle Excise and Registration Act 1994;

• “relevant contract” means a contract (including a contract arising only
  when the vehicle was parked on the relevant land) between the
  driver and a person who is—

  (a)

  40the owner or occupier of the land; or

  (b)

  authorised, under or by virtue of arrangements made by the
  owner or occupier of the land, to enter into a contract with the
  driver requiring the payment of parking charges in respect of
  the parking of the vehicle on the land;

• 45“relevant land” has the meaning given by paragraph 3;

• “relevant obligation” means—

  (a)

  an obligation arising under the terms of a relevant contract;
  or

  (b)

  an obligation arising, in any circumstances where there is no
  50relevant contract, as a result of a trespass or other tort
  committed by parking the vehicle on the relevant land;

Protection of Freedoms BillPage 134

• “vehicle” means a mechanically-propelled vehicle or a vehicle designed
  or adapted for towing by a mechanically-propelled vehicle.

(2) The reference in the definition of “parking charge” to a sum in the nature of
damages is to a sum of which adequate notice was given to drivers of
5vehicles (when the vehicle was parked on the relevant land).

(3) For the purposes of sub-paragraph (2) “adequate notice” means notice given
by—

(a) the display of one or more notices in accordance with any applicable
requirements prescribed in regulations under paragraph 12 for, or
10for purposes including, the purposes of sub-paragraph (2); or

(b) where no such requirements apply, the display of one or more
notices which—

(i) specify the sum as the charge for unauthorised parking; and

(ii) are adequate to bring the charge to the notice of drivers who
15park vehicles on the relevant land.

3 (1) In this Schedule “relevant land” means any land (including land above or
below ground level) other than—

(a) a highway maintainable at the public expense (within the meaning
of section 329(1) of the Highways Act 1980);

(b) 20a parking place which is provided or controlled by a traffic authority;

(c) any land (not falling within paragraph (a) or (b)) on which the
parking of a vehicle is subject to statutory control.

(2) In sub-paragraph (1)(b)—

• “parking place” has the meaning given by section 32(4)(b) of the Road
  25Traffic Regulation Act 1984;

• “traffic authority” means each of the following—

  (a)

  the Secretary of State;

  (b)

  the Welsh Ministers;

  (c)

  Transport for London;

  (d)

  30the Common Council of the City of London;

  (e)

  the council of a county, county borough, London borough or
  district;

  (f)

  a parish or community council;

  (g)

  the Council of the Isles of Scilly.

(3) 35For 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.

(4) 40In sub-paragraph (3) “statutory provision” means any provision (apart from
this Schedule) contained in—

(a) any Act (including a local or private Act), whenever passed; or

(b) any subordinate legislation, whenever made,

and for this purpose “subordinate legislation” means an Order in Council or
45any order, regulations, byelaws or other legislative instrument.

Right to claim unpaid parking charges from keeper of vehicle

4 (1) The creditor has the right to recover any unpaid parking charges from the
keeper of the vehicle.

(2) The right under this paragraph applies only if—

(a) 5the conditions specified in paragraphs 5, 6, 11 and 12 (so far as
applicable) are met; and

(b) the vehicle was not a stolen vehicle at the beginning of the period of
parking to which the unpaid parking charges relate.

(3) For the purposes of the condition in sub-paragraph (2)(b), the vehicle is to be
10presumed not to be a stolen vehicle at the material time, unless the contrary
is proved.

(4) The right under this paragraph may only be exercised after the end of the
period of 28 days beginning with the day on which the notice to keeper is
given.

(5) 15The maximum sum which may be recovered from the keeper by virtue of the
right conferred by this paragraph is the amount specified in the notice to
keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any
payments towards the unpaid parking charges which are received after the
time so specified).

(6) 20Nothing in this paragraph affects any other remedy the creditor may have
against the keeper of the vehicle or any other person in respect of any unpaid
parking charges (but this is not to be read as permitting double recovery).

(7) The right under this paragraph is subject to paragraph 13 (which provides
for the right not to apply in certain circumstances in the case of a hire
25vehicle).

Conditions that must be met for purposes of paragraph 4

5 (1) The first condition is that the creditor—

(a) has the right to enforce against the driver of the vehicle the
requirement to pay the unpaid parking charges; but

(b) 30is unable to take steps to enforce that requirement against the driver
because the creditor does not know both the name of the driver and
a current address for service for the driver.

(2) Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the
period of 28 days beginning with the day on which the notice to keeper is
35given) the creditor begins proceedings to recover the unpaid parking
charges from the keeper.

6 (1) The second condition is that the creditor (or a person acting for or on behalf
of the creditor)—

(a) has given a notice to driver in accordance with paragraph 7, followed
40by a notice to keeper in accordance with paragraph 8; or

(b) has given a notice to keeper in accordance with paragraph 9.

(2) If a notice to driver has been given, any subsequent notice to keeper must be
given in accordance with paragraph 8.

7 (1) A notice which is to be relied on as a notice to driver for the purposes of
paragraph 6(1)(a) is given in accordance with this paragraph if the following
requirements are met.

(2) The notice must—

(a) 5specify the vehicle, the relevant land on which it was parked and the
period of parking to which the notice relates;

(b) inform the driver of the requirement to pay parking charges in
respect of the specified period of parking and describe those charges,
the circumstances in which the requirement arose (including the
10means by which it was brought to the attention of drivers) and the
other facts that made those charges payable;

(c) inform the driver that the parking charges relating to the specified
period of parking have not been paid in full and specify the total
amount of the unpaid parking charges relating to that period, as at a
15time which is—

(i) specified in the notice; and

(ii) no later than the time specified under paragraph (f);

(d) inform the driver of any discount offered for prompt payment and
the arrangements for the resolution of disputes or complaints that
20are available;

(e) identify the creditor and specify how and to whom payment may be
made;

(f) specify the time when the notice is given and the date.

(3) The notice must relate only to a single period of parking specified under sub-
25paragraph (2)(a) (but this does not prevent the giving of separate notices
each specifying different parts of a single period of parking).

(4) The notice must be given—

(a) before the vehicle is removed from the relevant land after the end of
the period of parking to which the notice relates, and

(b) 30while the vehicle is stationary,

by affixing it to the vehicle or by handing it to a person appearing to be in
charge of the vehicle.

(5) In sub-paragraph (2)(d) the reference to arrangements for the resolution of
disputes or complaints includes—

(a) 35any procedures offered by the creditor for dealing informally with
representations by the driver about the notice or any matter
contained in it; and

(b) any arrangements under which disputes or complaints (however
described) may be referred by the driver to independent
40adjudication or arbitration.

8 (1) A notice which is to be relied on as a notice to keeper for the purposes of
paragraph 6(1)(a) is given in accordance with this paragraph if the following
requirements are met.

(2) The notice must—

(a) 45specify the vehicle, the relevant land on which it was parked and the
period of parking to which the notice relates;

(b) inform the keeper that the driver is required to pay parking charges
in respect of the specified period of parking and that the parking
charges have not been paid in full;

(c) state that a notice to driver relating to the specified period of parking
has been given and repeat the information in that notice as required
by paragraph 7(2)(b), (c) and (f);

(d) if the unpaid parking charges specified in that notice to driver as
5required by paragraph 7(2)(c) have been paid in part, specify the
amount that remains unpaid, as at a time which is—

(i) specified in the notice to keeper, and

(ii) no later than the end of the day before the day on which the
notice is either sent by post or, as the case may be, handed to
10or left at a current address for service for the keeper (see sub-
paragraph (4));

(e) state that the creditor does not know both the name of the driver and
a current address for service for the driver and invite the keeper—

(i) to pay the unpaid parking charges; or

(ii) 15if the keeper was not the driver of the vehicle, to notify the
creditor of the name of the driver and a current address for
service for the driver and to pass the notice on to the driver;

(f) warn the keeper that if, at the end of the period of 28 days beginning
with the day after that on which the notice to keeper is given—

(i) 20the amount of the unpaid parking charges (as specified under
paragraph (c) or (d)) has not been paid in full, and

(ii) the creditor does not know both the name of the driver and a
current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule
25are met) have the right to recover from the keeper so much of that
amount as remains unpaid;

(g) inform the keeper of any discount offered for prompt payment and
the arrangements for the resolution of disputes or complaints that
are available;

(h) 30identify the creditor and specify how and to whom payment or
notification to the creditor may be made;

(i) specify the date on which the notice is sent (if it is sent by post) or
given (in any other case).

(3) The notice must relate only to a single period of parking specified under sub-
35paragraph (2)(a) (but this does not prevent the giving of separate notices
which each specify different parts of a single period of parking).

(4) The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for service
for the keeper, within the relevant period; or

(b) 40sending it by post to a current address for service for the keeper so
that it is delivered to that address within the relevant period.

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 28
days following the period of 28 days beginning with the day after that on
which the notice to driver was given.

(6) 45A notice sent by post is to be presumed, unless the contrary is proved, to
have been delivered (and so “given” for the purposes of sub-paragraph (4))
on the second working day after the day on which it is posted; and for this
purpose “working day” means any day other than a Saturday, Sunday or a
public holiday in England and Wales.

(7) When the notice is given it must be accompanied by any evidence prescribed
under paragraph 10.

(8) In sub-paragraph (2)(g) the reference to arrangements for the resolution of
disputes or complaints includes—

(a) 5any procedures offered by the creditor for dealing informally with
representations by the keeper about the notice or any matter
contained in it; and

(b) any arrangements under which disputes or complaints (however
described) may be referred by the keeper to independent
10adjudication or arbitration.

9 (1) A notice which is to be relied on as a notice to keeper for the purposes of
paragraph 6(1)(b) is given in accordance with this paragraph if the following
requirements are met.

(2) The notice must—

(a) 15specify the vehicle, the relevant land on which it was parked and the
period of parking to which the notice relates;

(b) inform the keeper that the driver is required to pay parking charges
in respect of the specified period of parking and that the parking
charges have not been paid in full;

(c) 20describe the parking charges due from the driver as at the end of that
period, the circumstances in which the requirement to pay them
arose (including the means by which the requirement was brought to
the attention of drivers) and the other facts that made them payable;

(d) specify the total amount of those parking charges that are unpaid, as
25at a time which is—

(i) specified in the notice; and

(ii) no later than the end of the day before the day on which the
notice is either sent by post or, as the case may be, handed to
or left at a current address for service for the keeper (see sub-
30paragraph (4));

(e) state that the creditor does not know both the name of the driver and
a current address for service for the driver and invite the keeper—

(i) to pay the unpaid parking charges; or

(ii) if the keeper was not the driver of the vehicle, to notify the
35creditor of the name of the driver and a current address for
service for the driver and to pass the notice on to the driver;

(f) warn the keeper that if, after the period of 28 days beginning with the
day after that on which the notice is given—

(i) the amount of the unpaid parking charges specified under
40paragraph (d) has not been paid in full, and

(ii) the creditor does not know both the name of the driver and a
current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule
are met) have the right to recover from the keeper so much of that
45amount as remains unpaid;

(g) inform the keeper of any discount offered for prompt payment and
the arrangements for the resolution of disputes or complaints that
are available;

(h) identify the creditor and specify how and to whom payment or
50notification to the creditor may be made;

(i) specify the date on which the notice is sent (where it is sent by post)
or given (in any other case).

(3) The notice must relate only to a single period of parking specified under sub-
paragraph (2)(a) (but this does not prevent the giving of separate notices
5which each specify different parts of a single period of parking).

(4) The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for service
for the keeper, within the relevant period; or

(b) sending it by post to a current address for service for the keeper so
10that it is delivered to that address within the relevant period.

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14
days beginning with the day after that on which the specified period of
parking ended.

(6) A notice sent by post is to be presumed, unless the contrary is proved, to
15have been delivered (and so “given” for the purposes of sub-paragraph (4))
on the second working day after the day on which it is posted; and for this
purpose “working day” means any day other than a Saturday, Sunday or a
public holiday in England and Wales.

(7) When the notice is given it must be accompanied by any evidence prescribed
20under paragraph 10.

(8) In sub-paragraph (2)(g) the reference to arrangements for the resolution of
disputes or complaints includes—

(a) any procedures offered by the creditor for dealing informally with
representations by the keeper about the notice or any matter
25contained in it; and

(b) any arrangements under which disputes or complaints (however
described) may be referred by the keeper to independent
adjudication or arbitration.

10 (1) The appropriate national authority may by regulations made by statutory
30instrument prescribe evidence which must accompany a notice which is to
be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) or
paragraph 6(1)(b) (as the case may be).

(2) The regulations may in particular make provision as to—

(a) the means by which any prescribed evidence is to be generated or
35otherwise produced (which may include a requirement to use
equipment of a kind approved for the purpose by a person specified
in the regulations); or

(b) the circumstances in which any evidence is, or is not, required to
accompany a notice to keeper.

(3) 40The regulations may—

(a) include incidental, supplementary, transitional, transitory or saving
provision;

(b) make different provision for different purposes.

11 (1) The third condition is that—

(a) 45the creditor (or a person acting for or on behalf of the creditor) has
made an application for the keeper’s details in relation to the period
of parking to which the unpaid parking charges relate;