Legal blogger Jeanette Miller looks at the new law that will make it a criminal offence for private landowners such as supermarkets and car park operators to clamp or tow a vehicle.
If you have ever experienced that moment of returning to your car and seeing a big metal lock on the wheel, you will probably agree that it is one of the most infuriating times for the motorist.
Well, as of 1 October it will be a thing of the past.
The Protection of Freedoms Act 2012 brings in some major changes to the parking enforcement measures open to private landowners and car park operators.
The law pre-October 2012
Historically, private landowners have been entitled to payment for vehicles parked on their property by one of two legal routes:
- Contract – Where signage is clearly visible which sets out the charges for parking on private land it is implied that parking on that land forms a contract between the driver of the vehicle and the landowner. Therefore, if payment of the contractually agreed sum is not made then there is a debt under the contract and the vehicle can be lawfully clamped pending payment of that debt.
- Trespass to property – If a party enters private land without permission the land owner is entitled to compensation.
Changes under the Protection of Freedoms Act (PoF)
The act makes it a criminal offence to clamp or tow a vehicle without lawful authority.
The new offence will be penalised by either an unlimited fine on conviction in the Crown Court or a fine of not more than £5,000 in the Magistrates’ Court.
It will be very, very unusual for a private landowner such as a supermarket or car park operator to have lawful authority.
Therefore, from 1 October 2012, they will not be able to clamp or tow vehicles and if they do they commit a criminal offence.
The following groups will have lawful authority to clamp a vehicle:
- The owner of the vehicle has authority to clamp his own vehicle as and when he sees fit, for example to prevent theft.
- The police have lawful authority where vehicles are illegally, obstructively or dangerously parked or abandoned or broken down under section 99 of the Road Traffic Regulation Act 1984. These powers originally only applied to roads but have been expanded by the PoF act to apply to apply to "other land" as well.
- A local authority – Many local authorities have "lawful authority" under section 79 of the Traffic Management Act 2004 in conjunction with Part 3 of The Civil Enforcement of Parking Contraventions (England) General Regulations 2007. Therefore, the position in relation to on-street parking or local authority car parks is largely unchanged.
- The DVLA has lawful authority to clamp for non-payment of vehicle excise duty under The Vehicle Excise Duty (Immobilisation, removal and disposal of vehicles) Regulations 1997 and Vehicle Excise Duty (Immobilisation, Removal and Disposal of Vehicles) (Amendment) Regulations 2008.
- There will be various other groups who will have authority to under various byelaws such as Network Rail under Railways Act 2005 in conjunction with the Railway Byelaws. The other areas which are often covered by byelaws are ports, harbours, airports, areas in the vicinity of waterways/bridges etc.
Unpaid parking tickets
These are going to become recoverable from the vehicle's registered keeper.
With clamping no longer available as an enforcement measure, there must be some replacement provision to allow landowners to control unwanted parking.
Damages claims for contract and trespass have traditionally faced considerable technical obstacles as the party liable to pay damages is the party that entered the contract or committed the trespass.
In practice it is easy to identify the registered keeper of a vehicle (via the DVLA) but difficult to prove that they were the liable party (the driver of that vehicle when it parked).
In the vast majority of cases any claim could be defended by the registered keeper on the basis that they were not driving at the time. This is no longer an option.
Provided that certain requirements are met, as set out in Schedule 4 of the Protection of Freedoms Act, any unpaid tickets can be recovered from the registered keeper of the vehicle.
It is worth noting that for recovery from the keeper to be possible the landowner must display of one or more notices which specify the sum as the charge for unauthorised parking.
These notices must be adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.
End to cowboy clampers
It seems likely that these regulations will put an end to cowboy clampers. It remains to be seen whether they will be replaced with cowboy ticketers.
Even if they are, I think most motorists would rather receive a ticket than have the hassle of getting their car unclamped.
It will be more difficult for private landowners to hold someone to ransom without restricting their movements and people will find legitimate challenges to tickets easier as they will be able to take advice in advance of payment or challenge.
Motor lawyer Jeanette Miller, is a senior partner at Geoffrey Miller Solicitors, a UK firm specialising in defending drivers who face prosecution for motoring offences.
What do you think?
Are you glad to see an end to clamping? Have you ever been unfairly targeted by clampers?
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