At a recent meeting of the Cornwall Council’s Parking Advisory Panel, a short but well received briefing on clamping vehicles was given. In that briefing the panel was told of a change in the law on clamping will come about in the Protection of Freedoms Bill.
It was said the new Act would most likely come into effect in October 2012. However, on Monday 1st May, 2012 this Bill was given Royal Assent; and from July, the various points of the act will start to be enacted. So does that mean clamping of vehicles is will now be illegal? As with any change to the law it is never simple, or clear-cut.
The part of the Act that relates to clamping is Protection of Property from Disproportionate Enforcement Action, and is as follows:
- Chapter 2 makes it a criminal offence for a private person on private or public land to immobilize a vehicle (eg by clamping or obstructing), or to move a vehicle, with a view to denying the owner access to it. Section 99 of the Road Traffic Regulation Act 1984 is amended to extend and amend the powers of public authorities to move vehicles parked obstructively, illegally, or dangerously, including on private land.
- Clamping of vehicles and provisions relating to charging registered keepers of vehicles where a contract has been entered into with landowners or their agents, dealt with by Clauses 54-56 and Schedule 4 of the Act. These would have the effect of making it possible for clients to attempt to reclaim unpaid ‘parking charges’ from the registered keeper of a vehicle in cases where it is not known who was driving at the time of the charge notice being issued. Clamping would be unlawful on private car-parks unless entrances are barriered
From my understanding Cornwall Council and the Police still have the power (lawful authority) to clamp a vehicle. However, it will only be an offence if the immobilisation of the vehicle is done without lawful authority. In the past the fact there had been signs in place, clearly visible, clear etc gave rise to a contract (implied/express consent) but the new Act states that implied/express consent can only be considered lawful authority to clamp/remove if the vehicles on the land are controlled by fixed barriers. So in short, it seems no barrier, no clamping.
But, as I warned before it is not that simple because the ‘enforcer’ could have other legal avenues at their disposal. One of these is the common law doctrine of ‘distress damage feasant’ may be available. This is damage done on one person’s land by another person’s trespassing, which would allow for the vehicle to be removed. The good news is this does not mean clamping, just removal.
And just for the record, Cornwall Council’s Parking Services does not carry out clamping. Furthermore, it does not even own vehicles clamps. The reason why Cornwall Council still has this power was down to a simple tick in a box when this Bill went out to consultation to local authorities. Even though Cornwall Council does not clamp, these contraptions are well used in many privately owned car parks and on private land too.
I am sure this change in the law will be welcomed by 99% of the population. For the 1% who do not like this, I am sure there will be some very smart people trying to find a loophole in the legislation.