Publication of Vehicle Clamping Bill 2014

The Government has approved publication of the Vehicle Clamping Bill. The Bill will now go to the Dáil and Seanad for second stage debate.

 

Up until now, clamping was regulated on public roads but there was no regulation on clamping on private land.  This Bill, if enacted, will address that.

The principal provisions of the Bill include the: 

(a)        regulation of clamping and related activities; 

(b)        establishment of a two-tier appeals process to hear appeals against clamping or relocation;

(c)        provision of appropriate signage in places where clamping is operated;

(d)        setting of maximum clamp release and vehicle relocation charges;

(e)        establishment of a code of practice; and 

(f)        provision of necessary enforcement and investigate powers to investigate and prosecute any alleged breaches of regulations made.

This Bill will have implications for the regulation of clamping activities wherever they are operated.

The National Transport Authority will be the regulator. 

The Programme for Government states that “We will legislate to regulate the vehicle clamping industry.”

This stems principally from concerns which have been expressed by members of the public about the activity of some private clampers, and the extent to which this activity may be carried out in a less than fair manner, with no recourse or appeal against perceived abuses in many instances. 

In 2010, the then Fine Gael Spokesperson on Transport, Simon Coveney published a Private Members Bill, Vehicle Immobilisation Regulation Bill 2010.        

In December 2011 Minister Varadkar asked the then Joint Oireachtas Committee on the Environment, Transport, Culture and the Gaeltacht to draw up the principles that should be contained within this Bill. The Committee responded on 28th March 2012 with a comprehensive report which contained a number of recommendations, the majority of which have been taken into account in drafting the Bill.

Main issues likely to arise from the Bill:

Maximum clamp release charge

1.      How exactly will the proposed maximum clamp release charge operate 

The NTA will be involved in regulating charges under three headings: 

·        Non-statutory places: Where clamping is not currently regulated for, i.e. on private land, in shopping centre car parks etc., the NTA will regulate for a maximum clamp release and vehicle relocation charge.

If the NTA do not set a maximum clamp fee, the maximum clamp release charge will be €100, and vehicle relocation fee will be €50.

When regulating, the NTA may specify different maximum charges in different types of non-statutory clamping places, and different geographical areas, i.e. sports venues, shopping centres, hospital car parks situated in urban and rural locations etc.

·        Public road: On the public road, the Minister, in consultation with the Minister of Justice and Equality, and the NTA will prescribe the clamp release charge applying.

·        Statutory clamping places: Where clamping is operated under existing legislation, i.e. railway and Luas stations, state airports, and harbours, these bodies will have to have regard to the maximum charge recommended by the NTA.

·        A person who charges or attempts to charge a clamp release charge greater than the €100 maximum standing prescribed, or specified in regulations by the NTA commits an offence and is liable on summary conviction to a class C fine (not exceeding €2,500).

2.      Will the clamp release charge of the public roads now increase to €100? 

·        The current €80 clamp release charge will still apply.

·        The Minister has no proposals to increase the current charge.

3.      Will clamp release charges currently being charged in non-statutory places, i.e. private lands and the like, now be capped at €100?

·      No, not for the present. The €100 maximum charge will only apply oncesection 14 is commenced, and then only if the NTA has not regulated for a maximum clamp release charge.

4.      Why provide for a maximum clamp release charges on private land?

·        Unfortunately, this is where the greatest variation in charges exists. 

·       It is only right to regulate for a maximum charge in the public interest. 

·  In the interests of transparency and equity “across the board”, the setting of clamp release charges on the public road, as well as on state lands such as CIĒ, RPA, state airports and the harbours, will all be subject to consultation with the NTA.

·   A principal feature of the Bill is the proportionate and non-discriminatory regulatory approach to the regulation of clamping activities in both the private and public sectors

5.      How was a €100 clamp release and €50 vehicle relocation charge decided? 

·        Again, these charges will only stand specified once section 14 is commenced, and only then in the absence of NTA regulated charges 

·        Given the variation in clamp release charges on private land, and the €80 currently being charged on the public road, it was concluded that €100 was the most appropriate charge to stand specified in the absence of regulations made by the NTA.

6.      Does regulating charges not interfere with private property rights?

·      This Bill does not interfere with any citizen’s right to clamp on their own private property. It merely provides that where clamping is operated, it will operate in accordance with the provisions of this Bill and any regulations made under it.

Vehicle Relocation

7.      Why is there now a charge for towing / relocating a vehicle?

·        This Bill regulates vehicle relocation, and not towing or storage charges.

·        An example of where a vehicle might be relocated on the public road might include relocating a vehicle illegally parked in a bus lane. 

·        Currently, Dublin City Council (DCC) does not charge for the temporary relocation of such vehicles to a location nearby. This is because Dublin Street Parking Services (DSPS), who operate on DCC’s behalf, already have the capability to tow vehicles as part of their contract with DCC.

·        Not all individuals or clamping operators have the resources that companies such as DSPS possess. Such individuals/operators may have to incur a charge, i.e. hiring a tow truck to relocate a vehicle on their land. In light of this, €50 was deemed to be an appropriate vehicle relocation charge.

·      A person who charges or attempts to charge a vehicle relocation charge greater than the €50 maximum standing prescribed, or specified in regulations by the NTA commits an offence and is liable on summary conviction to a class C fine (not exceeding €2,500).

 

Appeals

8.      How will the appeals process operate? 

·        The Bill provides for a two-tier appeals process.

·        A person whose car has been clamped or relocated may make a first-stage appeal to the landowner, local authority or body responsible for enforcing parking in a particular place.

·        Where a person is not satisfied with the determination of this appeal, they may lodge a second-stage appeal to an independent clamping appeals officer designated by the NTA.

·        A parking controller who fails to put clamping / vehicle relocations appeal procedures in place, in accordance with this Bill or regulations made by the NTA commits an offence and is liable on summary conviction to a class B fine (not exceeding €4,000).

9.      How will motorists obtain information regarding the appeals process?

·        It will be printed on the notice affixed to a clamped vehicle.  It may also be available on request and free of charge from the landowner/person responsible for that land.

10.  Will the motorist be charged for lodging an appeal?  

·        There is no charge for the first-stage appeal to the landowner, local authority or body responsible for enforcing parking in a particular place.

·        Any fee charged for lodging a second-stage appeal to the independent clamping appeals officer appointed by the NTA will be a regulatory matter for the NTA.

Signage

11.  Who will be responsible for signage? 

·        This Bill obliges landowners or persons responsible for places in which clamping is operated to provide prominent signs indicating that clamping is in operation, and indicating the clamp release and vehicle relocation charges (if any) applying.  

·        The NTA may regulate for where such signage is located, its informational content, dimensions, design, symbols displayed; and the number of signs to be displayed (section 10).

·        It will be an offence not to provide signage liable on summary conviction to a class C fine (not exceeding €2,500).

·      It will be an offence to erect a sign displaying a clamp release, or vehicle relocation charge greater than either the maximum charge standing prescribed (€100 and €50 respectively), or specified by the NTA the parking controller for that place commits an offence. The penalty will be a class B fine (not exceeding €4,000)

Codes of Practice & Complaints Procedure

12.  Why not make codes of practice mandatory? 

·        The statutory regulation of clamping activities, complete with associated sanctions was deemed to be more enforceable and effective.  

·        Regulations set a higher threshold in terms of encouraging compliance with the provisions of this Bill. Codes of practice do not provide the necessary proof required when prosecuting an offence for failure to comply with this Bill. 

·        The NTA may establish codes of practice establishing standards and provide practical guidance for clamping operators in carrying out their duties, as well as for those persons contracting their services (section 11).

13.  How will the complaints procedure operate?

·        This is a matter for the NTA under section 17. 

·        The NTA may establish a procedure to consider complaints from the public regarding the discharge of landowners’ and State bodies’ responsibilities, as well as in relation to the conduct and identification of clamping operators .

Regulating the Physical Processes Involved in Clamping

14.  How will the actual physical act of clamping be regulated?

·        Amongst other activities, section 9 provides for the:
(1)     time period that that shall elapse before clamping a vehicle;
(2)     clamp release time after payment of the appropriate charge;
(3)     means of identification of clamping operators and their vehicles;
(4)     form of clamping notice to be affixed to clamped vehicles;
(5)     manner in which payment of clamp release charges may be made;

(6)       means of gathering evidence of illegal/wrongful parking; and

(7)       requirements in relation to the type of clamp used.

 

·        A person, who fails to comply with or contravenes a provision of clamping regulations, which is stated in the regulations to be a penal provision, commits an offence and is liable on summary conviction to a class C fine (not exceeding €2,500).

Absence of Licensing Provisions

(15)      Why was the licensing of clamping operators not provided for? 

·        It was deemed to be disproportionate to the issues of public concern which this Bill seeks to address.

·        A licensing regime, would by its nature, focus on clamping operators and would impose severe constraints on individuals who chose to clamp vehicles of their own accord on their own land.

·        The cost effectiveness, questionable benefit, and practicality of administering a licensing regime were also decisive factors in not legislating for such.

·        In the end, it was concluded that regulating the activity of clamping, irrespective of location, rather than the authorising/licensing of the practitioner of such activity was more appropriate and effective.

Absence of Vetting Provisions

(16)    Why was vetting of front-line operatives and clamping operators not provided for? 

·        Vetting is an associated adjunct to licensing. It was concluded that clamping activities do not pose a level of risk to the public that warrants the provision of vetting procedures for front-line operators. 

·        Any pre-employment administrative procedure must be proportionate to the level of risk that a particular employment activity poses. Clamping, does not pose the same risk, as other employment activities which come into contact with vulnerable members of society.

·        The vetting of clamping operators for financially related improprieties is negated by existing legislative provisions under company, money laundering, and criminal law.

Acess to the NVDF

(17) Why no provisions for access to the National Vehicle Driver File (NVDF)?

·        An application for access to information from the NVDF for the purposes of administering a parking control system, such as ticketing, is already provided for under existing legislation namely the Finance Act 1993.

Newly Inserted Section 101B

(18) How does the newly inserted section 101B differ from its predecessor

·        This section provides for the clamping and removal of illegally parked vehicles on the public road.

·        In addition to pre-existing provisions it:

o       obliges the Minister to consult with the NTA before setting clamp release charges; 

o       amends the notice to be affixed to a clamped vehicle, particularly in relation to giving details of the appeals process;

o       in accordance with section 9 of the Bill, it provides for the time period for the removal of a clamp;

o       prohibits the clamping of a vehicle on the public road, other than by a Garda, traffic warden or person authorised by a local authority; and

o       provides that where a clamp is fixed to a vehicle in accordance with this section, a fixed charge notice need not be served in respect of a parking contravention unless it is contemplated that proceedings for an offence in relation to the contravention might be brought.

Clamping and Revenue Generation

(19)    Is clamping not simply a means of generating local authority revenue?

·        The current maximum clamp release charge that may be charged by local authorities was set by Regulation in 1998 at £65 which, with the introduction of the euro, converted to €80.

·        There are no proposals to increase this charge. As the charge has remained unchanged since 1998 it is clear that clamping is being used to incentivise compliance with parking regulations, rather than as a revenue generating exercise 

·        When properly used as part of a controlled and responsible parking enforcement regime, clamping is intended to modify driver behaviour so as to encourage the sustainable use of parking facilities, which is by its nature a finite resource intended for the common good. 

·        Prior to the introduction of clamping in Dublin, the problems associated with illegal parking were endemic, causing difficulties for residents and traders alike who could not access parking during business hours, as metered spaces were often occupied by all-day commuters.

·        Contrasting Dublin before the introduction of clamping with today, it is evident that the use of clamping as an instrument of public parking policy has been highly effective.

Banning Clamping

 

 Why not simply ban clamping as in the UK?

 

·        Clamping on private land is banned in Scotland arising from the legal case of Black v. Carmichael.

 

·        Without lawful authority to do so, clamping in England and Wales is illegal under the Protection of Freedoms Act and came into effect on October 1st 2012.

 

·        The police, local authorities, and bodies acting in accordance with statutory or other powers, such as railway stations and airports may however continue to clamp vehicles. For instance the Driver and Vehicle Licensing Agency may clamp or tow away vehicles whose vehicle tax has not been paid, while the Vehicle and Operator Services Agency may clamp or tow away an un-roadworthy vehicle.

 

·        Clamping is a cost effective method of ensuring compliance with parking laws on the public road, and parking terms and conditions on private property.

 

·        Both the State and landowners should be able to enforce parking in a cost effective, but fair manner, which this Bill provides for.