The Protection of Freedoms Act 2012 brings in wide-ranging changes to the way individuals interact with the state. This briefing outlines one of these changes, which relates to the enforcement of parking on private land (including local authority land which is neither a public highway nor a regulated car park). The act bans the clamping and towing of vehicles parked on private land from 1 October this year. The only enforcement action allowable will be parking tickets. This briefing outlines the steps local authorities can take to mitigate the impact of this aspect of the legislation. It also explains the new adjudication service (provided by London Councils for England and Wales) to handle appeals against tickets issued under the Act.
The Protection of Freedoms Act 2012 (‘the Act’) is a piece of legislation designed to address a number of areas where the state interacts with individuals. The intention is to shift the balance of power more closely in favour of individuals. According to its sponsor department, the Home Office, “millions more people will be protected from state intrusion into their lives through a sweeping range of policies which will restore common sense to government.”
The areas covered by this legislation include: the retention and use of fingerprints and DNA samples; the regulation of CCTV; disproportionate enforcement for certain offences; counterterrorism; safeguarding vulnerable groups, and; freedom of information. This briefing relates to Part 3: The Protection of Property from Disproportionate Enforcement Action, specifically Chapter 2: Vehicles Left on Land. The main effect of this part of the Act is to ban clamping and removal of vehicles parked on private land from 1 October 2012.
What land is affected by this legislation?
The Act does not affect local authority activities on the highway, or in car parks regulated under section 35 of the Road Traffic Regulation Act 1984. However, it does affect other local authority land, such as housing estates or leisure centres. It also affects all other private land, including hospitals, colleges and shopping centres, whether or not the parking takes place in a designated car park.
What will change?
From October, parking enforcement in the areas covered by the legislation will only be possible through issuing tickets. It will be illegal to affix a clamp to - or otherwise restrict a driver’s ability to move - a vehicle.
It will also be illegal to move the vehicle (for example, to a car pound) with the intention of preventing the motorist from collecting it. Clamping and removal by local authorities from public highways or regulated car parks is still permitted and is not affected by this Act.
On what basis will tickets be issued?
Tickets will be issued on the basis of driver liability. In other words, the person who parked the vehicle will be responsible for paying the ticket. It will be for the enforcer to identify the driver. The government has promised to commence a section of the Act (schedule 4), which provides for keeper liability, if there is an independent appeals service provided by the industry. This would make it easier to enforce the ticket for private enforcement companies.
Local authorities may also use the schedule 4 provisions for areas that are not designated parking places (eg lawns, playing fields etc). Schedule 4 provisions do not apply to local authority land where parking places have been designated, such as housing estate parking. S.35 orders should be made to enforce in these areas.
Can a driver appeal their ticket?
Yes. The BPA has asked London Councils to provide the independent appeals service. London Councils will do so using the existing infrastructure at the Parking and Traffic Appeals Service (PATAS), although the adjudication process will be separate and different from the tribunals for parking and Congestion Charge contraventions. It will be referred to as POPLA: Parking on Private Land Appeals.
This legislation creates a fair operating environment for motorists and a level playing field for legitimate providers of parking enforcement services. Councils should be aware, though, that the ban on removal is expected to cause serious problems in some locations where there will be no immediate remedy for obstructive vehicles. Local authorities can mitigate these problems by ensuring that all relevant parking areas in their ownership are either covered by orders under section 35 of the Road Traffic Regulation Act 1984 (RTRA), or else are barrier-controlled car parks. Local authorities may also make s35 orders on private land, so long as the land owner agrees (by way of section 33 of the RTRA). This would enable full local authority enforcement in the usual way, which might also provide a net income for the council concerned. A s35 order can cover any piece of land, including places where nobody should park or where the parking is not for general use – a park or school playing field, for example.
As mentioned above, the government has indicated that it is prepared to change the basis for the issuing of tickets from driver liability to keeper liability. This will make it easier for those companies to enforce tickets issued on private land. The government has also said that it will only allow this if an independent appeals service, as exists with on street parking, is established. The BPA has commissioned London Councils to provide this service, given our existing experience running PATAS.
The new appeals service will be for people to appeal a parking charge notice issued on private land anywhere in England and Wales if it has been issued by a member of the BPA's Approved Operator Scheme. It will have some similarities to PATAS, although it will consider the merits of each case based on contract law, as opposed to road traffic regulations.
FAQs about the Protection of Freedoms Act can be found here: http://www.britishparking.co.uk/Protection-of-Freedoms-Act/Clamping-and-towing-ban-FAQs
Information on how to join the Approved Operator Scheme can be found here: http://www.britishparking.co.uk/How-to-become-an-Approved-Operator
Thanks to Rob Kidd, Transport and Parking Manager at London Councils, for providing this guidance.