The Protection of Freedoms Act 2012 (“the Act”) sets out two important legislative changes concerning the parking of vehicles on private property. These changes took effect 1 October 2012, and will have far reaching consequences for landowners and those seeking to park vehicles on their property.

Firstly, s.54 of the Act introduces a new criminal offence encompassing the majority of wheel clamping and towing activities by private landowners. While this legislation is undoubtedly aimed at unscrupulous wheel clampers (the subject of much controversy), it will also impact property owners, who have up to now used wheel clamping as a proportionate means of enforcement.

Secondly, the legislation will make it easier for private landowners to recover unpaid parking charges by allowing the “keeper” of a vehicle to be held liable for unpaid parking charges, where the identity of the driver is not known and provided that a specified procedure is followed. Here, the government’s intention is to close the loophole that allows a vehicle keeper to shirk responsibility for paying parking charges by claiming they were not driving the vehicle at the time the charge was incurred.

Wheel Clamping

The law prior to 1 October 2012

Prior to 1 October 2012, individuals or businesses could clamp vehicles if they had a valid vehicle immobiliser licence from the Security Industry Authority (“SIA”).

The new offence

Section 54 of the Act makes it a criminal offence to:

  • immobilise a motor vehicle by attaching to the vehicle or to part of the vehicle an immobilising device (typically a wheel clamp);
  • move a motor vehicle (for example, by towing away); or
  • restrict the movement of a vehicle (for example, blocking the vehicle in with another vehicle).

Intention

A person will not be guilty of this offence unless he undertakes one of the actions above with the intention of preventing or inhibiting the removal of the vehicle concerned by a person otherwise entitled to remove it.

Thus a landowner is entitled to move a vehicle a short distance where it is obstructing access to his or her property and he or she does not intend to prevent the driver from subsequently retrieving it. Likewise, a motorist is entitled to clamp his or her own car to prevent theft.

Lawful authority

It is important to note that the offence will not apply where a person has lawful authority to take any of the actions above. Local authorities, the police, the DVLA and the Department of Transport’s Vehicle and Operator Services Agency have varying mandates to immobilise, move or restrict the movement of vehicles in specific circumstances. Indeed s.55 of the Act extends the powers of the police to remove vehicles from all areas of private land (not only roads, as is presently the case) where they are illegally, obstructively or dangerously parked or broken down. Additionally, bailiffs have statutory and common law powers to immobilise and tow away vehicles for the purpose of enforcing debts. Please also note that bodies with lawful authority to clamp and tow may continue to contract out this work to private companies.

This legislation is directed at the proprietors of private car parks and s.54(2) provides that the express or implied consent of a person otherwise entitled to remove the vehicle will not amount to lawful authority. Consequently a landowner cannot argue that express or implied provisions in the contract between itself and a user of the car park entitles it to clamp or tow away a vehicle parked there. All signage and notices to this effect ceased to be effective on 1 October 2012.

Fixed barriers

Section 54(2) is however subject to the provisions in s.54(3) which effectively provide an exception for barrier operated car parks. Where a driver has given express or implied consent to the movement of his or her vehicle being restricted by a fixed barrier (for example by his or her entering a privately operated car park), no offence will be committed where the driver is prevented from leaving the car park by a fixed barrier which remains in place because the driver has not paid the requisite parking charges (provided the barrier was present when the vehicle was parked, but regardless of whether the barrier is subsequently lowered into place).

Penalties

A person guilty of an offence under s.54 of the Act will be liable:

  • on conviction on indictment, to an unlimited fine; and
  • on summary conviction, to a fine not exceeding the statutory maximum (currently £5000).

Parking Charges

The law prior to 1 October 2012

Parking contracts are usually made between the driver of a vehicle and the parking provider. Thus prior to 1 October 2012, any tort or breach of contract committed by the driver would not stretch to the vehicle keeper (if different from the driver) and the easiest way for a vehicle keeper to avoid liability for parking charges was by claiming that they were not driving the car at the time the breach of contract or tort was committed.

The new scheme

The new scheme does not apply to land provided or controlled by a “traffic authority” which includes local councils and Transport for London. Nor does the new scheme apply to land designated as a public highway or subject to statutory control. Again, the government’s focus is on private car park operators and their customers.

Paragraph 4 of Schedule 4 to the Act provides that a “creditor” (defined as a person, who for the time being, is entitled to recover unpaid parking charges from the driver of the vehicle) has the right to recover any unpaid parking charges from the keeper of the vehicle provided various conditions are met and provided the vehicle was not stolen at the beginning of the period of parking to which the unpaid parking charges relate. There is a presumption that the vehicle is not stolen unless the contrary is proven.

The keeper of the vehicle means the person by whom the vehicle was kept at the time the vehicle was parked. In the case of registered vehicles, there is a presumption that the registered keeper is the keeper unless the contrary is proved.

The various conditions are as follows:

Condition 1: the creditor has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges but is unable to take steps to enforce that requirement against the driver because the creditor does not have both the name of the driver and a current service address for the driver.

Condition 2: the creditor (or a person acting for or on behalf of the creditor) has given a notice to driver in accordance with paragraph 7 of the Act, followed by a notice to keeper in accordance with paragraph 8 of the Act or alternatively has given a notice to keeper in accordance with paragraph 9 of the Act.

A notice to driver under paragraph 7 is essentially a regular parking ticket. The notice must be affixed to the vehicle or handed to a person appearing to be in charge of the vehicle while the vehicle is stationary and before the vehicle is removed from the relevant land. Paragraph 7(2) sets out various matters to be included in the notice including the total amount of unpaid parking charges and any arrangements for the resolution of disputes between the creditor and driver.

A notice to keeper under paragraph 8 must contain details of the parking infringement (similar to those contained in a paragraph 7 notice). The creditor must state that it does not know the name of the driver nor a current service address for the driver and invite the keeper to pay the unpaid parking charges or, if the keeper was not the driver of the vehicle, invite the keeper to notify the creditor of the name of the driver and a current service address for the driver and to pass the notice on to the driver. The creditor will then have the right to recover the unpaid charges from the keeper if (after 28 days beginning with the day after the paragraph 8 notice is given) the charges have not been paid in full and the creditor does not know both the name of the driver and a current service address for the driver.

Paragraph 9 sets out the notice requirements, where the creditor wishes to serve a first notice directly on the keeper of the vehicle (for example where parking enforcement is carried out after the event by CCTV).

Condition 3: the creditor must have made an application to the Secretary of State (in practice the DVLA) for the keeper’s name and address and that information must have been provided by the Secretary of State. This only applies where the vehicle is registered.

Condition 4: the creditor must have complied with any requirements as to the display of notices prescribed by the appropriate national authority at the beginning of the period of parking to which the unpaid charges relate.

The right under the new scheme may only be exercised after the end of the period of 28 days beginning with the day on which the notice to the vehicle keeper is given.

Other rights which the creditor may have against the vehicle keeper are not affected and the creditor will not be allowed to “double recover” under this legislation.

Hire vehicles

Paragraph 13 provides important relief where a hire firm is served with a notice to keeper in respect of a vehicle hired to any person under a hire agreement. This applies to hire agreements of any duration, but not hire-purchase agreements. The hire firm will not be liable for the unpaid parking charges so long as within 28 days (beginning with the day after the date on which the notice was given) the hire firm provides the creditor with:

  1. a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
  2. a copy of the hire agreement; and
  3. a copy of a statement of liability signed by the hirer under the hire agreement;
  • whereby the hirer acknowledges responsibility for any parking charges that may be incurred with respect to the vehicle while it is hired to the hirer; and
  • whereby the hirer provides a service address for receipt of documents.

It will be of crucial importance to set out in hire agreements, the allocation of responsibilities in relation to parking charges. For example, will the hire company pay the fine and invoice the hirer or will the hire company prefer to use the new scheme above? It might be efficient for a hire company to continue paying low level parking charges (and subsequently invoice the hirer) and only use the new scheme for charges over a specified limit.

If the hire company decides to provide the details of the hirer to the creditor, the creditor will need to follow a procedure and serve a notice on the hirer. This will enable the creditor to recover money directly from the hirer.

Importantly the person named on the hire agreement may be pursued by the creditor for payment of outstanding parking charges, even where he was clearly not the driver of the vehicle. This would appear to put a hirer in a more onerous position to that of a regular car owner or a person on a contract purchase – the latter two are able to pass liability to another driver by notifying the creditor of the driver’s details. The Department for Transport has indicated that this drafting is intentional and it will fall on the contractual relationship between the corporate hirer and individual drivers to allocate responsibility.

For example, a company leases a vehicle from a leasing company. The vehicle is used as a pool car and an off street parking ticket is issued and not paid. The leasing company chooses not to pay but instead follows the new scheme and nominates the company. The company has no choice but to pay as it cannot nominate the individual driver concerned. This could represent a logistical nightmare for a corporate hirer with a large fleet of vehicles and a fluctuating staff of drivers.

Appeals

Parking operators that are members of an Accredited Trade Association (“ATA”) (so far only the British Parking Association (“BPA”)) will usually give drivers/registered keepers the opportunity to dispute parking tickets by making representations to that effect. The parking operator will then consider those representations and decide whether or not to cancel the ticket or reduce the charges. If the matter cannot be resolved at this stage, the parking operator may choose to issue legal proceedings and the driver/ registered keeper may choose to defend those proceedings.

From 1 October 2012, if the driver/ registered keeper is not satisfied with the decision of the parking operator, he or she may appeal to an Independent Appeals Service, which members of the BPA are now required to provide free of charge (so long as the registered keeper/ driver has made proper representations to the parking operator in the first instance). The Independent Appeals Service established by the BPA is called Parking on Private Land Appeals (POPLA) and more details can be found at: http://www.popla.org.uk/.

Drivers/registered keepers retain a right of appeal to the Courts where they disagree with a decision of POPLA. In contrast, a decision against a car park operator will be binding on that car park operator. Where a decision is made in favour of a car park operator, it may choose to take court action to recover the amount outstanding if the driver/registered keeper still refuses to pay the parking charge.

Please note that non-BPA car park operators are not required to subscribe to an appeals process, so any disputes or appeals will normally be dealt with by the Courts (if they cannot be resolved informally between the parties).

Limits

In theory, there are no limits on the amount a private car park operator can charge under a parking contract (both parking fees and subsequent charges). Of course, these are contractual terms which must be properly incorporated into the contract by clear notice to the driver.

Car park operators which are members of the BPA, should comply with the BPA’s Approved Operator Scheme Code of Practice or face possible disciplinary action by the BPA. Pursuant to this Code, parking charges (but not ordinary parking fees) must be reasonable. Click here to view the BPA's Code of Practice.

Section 19.5 of the Code provides that charges for breach of contract or act of trespass must be based on a genuine pre-estimate of loss and should not be more than £100. If the charge is more than this, operators must be able to justify the amount in advance. A parking charge based upon a contractually agreed sum cannot be punitive or unreasonable. If it is more than the recommended amount and is not justified in advance, it could lead to an investigation by The Office of Fair Trading.