How can operators prevent “fly parking” now?
Clamping or towing cars parked on private land will shortly become unlawful under the Protection of Freedoms Act 2012. New legislation, currently being rubberstamped by Parliament, will mean that landowners will need to ask local authorities or the police to remove vehicles and then sue for damages or repayment of removal costs, rather than being able to have them removed themselves.
This will cause a problem for many city centre pubs, restaurants and hotels whose car parks are used by people who have no intention of patronising the premises. Currently, where the problem is serious, operators can employ clamping firms (licensed by the Security Industry Authority) to police their car parks and clamp those who are parking in breach of the rules -but all that is set to change.
In future, to combat the widespread problem of “Cowboy Clampers”, it will be unlawful to clamp or tow cars parked on private land. If you continue to clamp or tow away cars in your car park after the new rules come into force you will risk an unlimited fine in the Crown Court or up to £5,000 in the magistrate’s court.
The new rules will mean that only police, councils or official bodies such as the DVLA will be allowed to immobilise or remove a car in exceptional circumstances, e.g. when a car is blocking a road or when the vehicle is untaxed.
Critics, including the British Parking Association (BPA), have criticised the Government for creating “a charter for the selfish parker”, giving drivers the freedom to park wherever they want.
Intention is relevant
An offence is only committed if you clamp or tow away a vehicle “with the intention of preventing or inhibiting a person entitled to move the vehicle concerned from moving the vehicle.” You would not commit an offence therefore if you moved a vehicle which had been obstructively parked, a very short distance, so that you or your customers could gain access to your car park as long as in moving it you do not intend to prevent the driver from subsequently retrieving it.
How will you be able to stop people parking in your car park?
In the past you may have allowed customers to park in your car park “subject to your terms and conditions” which are advertised on a board in the car park. A customer impliedly accepts your terms when he parks in your car park. However, it is worth noting that the new legislation specifically states that even if consent to clamp or tow is expressly or impliedly given in this way this will NOT constitute lawful authority to clamp or tow. In future such signs will not give the landowner or car park operator the right to clamp or tow away.
Although you will no longer be able to employ a clamping firm to clamp or tow unauthorised vehicles that park in your car park you will be able to:
- Erect a barrier to keep drivers out or offending drivers in. You could provide a keypad entry system with the daily code for exit being available at the bar when drinks or food are purchased
- Erect a barrier and charge to use your car park. If you charge to park you could then reimburse customers who buy food or drink. Under the Protection of Freedoms Bill no offence would be committed if you refused to raise the barrier until the required parking charge had been paid (as long as the barrier was there when the car was parked)
- Issue parking tickets to cars parking without authority. This may seem an alternative to wheel clamping but it is not without its problems. Evidence shows that the threat of a parking ticket is a much weaker deterrent to parkers than the possibility of being clamped and is also more expensive for the operator. Critics believe that the cowboy clampers will merely become cowboy ticketers.
Enforcing Parking Charges
Any private parking ticket issued will not be a fixed penalty with legal weight. It will only be enforceable through the small claims court in a breach of contract action which will be harder for you to win. It is often difficult to prove who the driver of a vehicle was at a specific time and under existing provisions the registered keeper has no obligation to inform you of the driver’s name and address, if it was not them. However, under the provisions set out in the Bill, if you belong to an accredited trade association (currently only the British Parking Association), and run your car park in accordance with their best practice, you will be able to apply to the DVLA for details of the registered keeper of a vehicle.
The Bill also permits you to recover unpaid parking charges from the registered keeper of a vehicle, rather than the driver, if:
- You have a right to enforce parking charges against the driver but cannot do so because you do not have their name and address
- You gave a notice to the driver setting out the parking charges payable or affixed a notice to the vehicle whilst it was parked on your land AND 28 days have passed since then
- You make a claim against the registered keeper within 60 days of receiving his/her name and address from the DVLA.
Make parking conditions clear
The key issue when issuing/enforcing a parking ticket or refusing to raise a parking barrier until payment has been made is that the conditions of the car park have been made clear to those using your land when they park. You MUST ADVERTISE ANY parking charges and enforcement mechanisms on a notice board at the entrance to the car park as well as inside the car park.
All three of the above options involve additional expense to the operator of licensed premises with a car park and in many cases, where parking by unauthorised vehicles is not an issue, such measures will not be necessary.
Impact on the Leisure Sector
In effect, the new Regulations will mean that to stop unwanted cars parking in your car park you will need to put up signs clearly warning of the penalties of parking without permission and in addition either install a barrier or employ a ticketing agency to enforce parking tickets on your behalf. In reality it seems unlikely that the Police will be quick to remove vehicles for you unless they are obstructing the highway.
Click here to read: Free up your car park for customers
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.