From 1 October 2012 it is an offence to clamp, tow, block-in or immobilise a vehicle without lawful authority on private land under the Protection of Freedoms Act 2012. Only those with the legal power to clamp or remove vehicles (such as the police, traffic enforcement agencies or local authorities) may do so.
This is the coalition government’s attempt to protect motorists from overzealous private enforcers who immobilise vehicles, attempt to charge unreasonable fines and intimidate members of the public. Unfortunately, these new laws and guidance will have an impact on how universities are able to enforce their parking rules, too.
It is important for universities to get their parking enforcement strategies right, as under the new legislation parking enforcers who act illegally could be liable to a fine of up to £5,000 in the Magistrates' court or an unlimited fine in the Crown court. Motorists given penalty charge notices also have greater recourse to appeal against those notices through the Independent Appeals Service, which is funded by the British Parking Association (BPA). This is a free service which will decide on appeals against notices issued on private land by enforcers who are members of the BPA’s Approved Operator Scheme - which several universities are.
Bodies which are not a BPA-approved operators will not be bound by this appeals process, but will be expected to offer an informal procedure for dealing with representations made by the driver, and to advise drivers of any arrangements under which disputes or complaints can be referred to independent adjudication or arbitration under the new law. As general guidance for these bodies, the Department for Transport has advised that charges for breaking a parking contract should be a “reasonable and a genuine pre-estimate of loss”. We would consider penalties in the region of up to £60 to be reasonable.
It should be noted that motorists will also be protected by consumer protection legislation which ensures consumers are treated fairly and reasonably in the circumstances. This includes ensuring that car park signs are very clear and that full terms and conditions are provided to motorists. Terms can be questioned by the motorist, local authority trading standards services and the Office of Fair Trading; therefore it is imperative that parking terms are fair and reasonable.
If a university is a member of the BPA’s Approved Operator Scheme the BPA advises that, from 1 October 2012, the university should cease all clamping, and should, if it issues parking charge notices:
- ensure that all of its notices and letters refer to recourse to an informal appeals mechanism and also to the ‘Parking on Private Land Appeals (POPLA) Independent Appeals Service (IAS);
- ensure that all campus signage is up-to-date by referring to the BPA’s Code of Practice (http://www.britishparking.co.uk/write/BPA_Code_of_Practice_2012_Version_1_October_2012.pdf) - the university must refer clearly to the terms and conditions of parking and the potential charges payable if these are broken;
- not have a fixed charge of over £100 for any ticket issued, unless this has been agreed with the Approved Operator Scheme’s Compliance Team;
- offer a discount of at least 40% for prompt payment of the ticket;
The parking charge notice should include the vehicle registration number, car park name, date, time, charge applicable, reason for issue, reference to signage, dispute resolution procedures such as reference to POPLA, the operator’s name and details of how to pay the charge.
If the university wishes to pursue the keeper of the vehicle as the driver is untraceable, then it must serve notice on the keeper of the vehicle and this should repeat the information above, state that the driver is liable and ask for payment or for the details of the driver to be provided within 28 days.
The university’s appeal rejection letters must include reference to POPLA, and enclose the POPLA Notice of Appeal, their accompanying notes for motorists and the university’s unique POPLA ID code.
Universities will now be able to pursue the registered keeper of the vehicle for unpaid fines, instead of the driver, if they can demonstrate that there is reasonable cause for the DVLA to provide them with these details. It should be noted that, if left unpaid, parking charge notices can only be enforced through the Small Claims court, which is unappealing due to the added costs, expense and inconvenience to the enforcer, and therefore it may be prudent to consider other methods of parking control.
Universities can still use parking barriers, ticket machines and, of course, issue car parking tickets as long as they adhere to the applicable rules above. Additionally, police powers have been extended so that the police have greater powers to remove cars which have been illegally left on private land, and the DVLA will still be able to act where these circumstances relate to Vehicle Excise Duty.
In conclusion, it should be noted that clamping has been banned in Scotland since 1992, and landowners have not reported huge problems with this. Effective early action now should protect campuses from parking problems in the future and keep costs to a minimum.