Private Land, Car Parking and the Protection of Freedoms Act 2012

The Protection of Freedoms Act 2012 introduces measures about car parking on private land. The Act received Royal assent on 1 May 2012 and is commencing gradually. Section 54 of the Act, which takes effect on 1 October 2012, will essentially outlaw clamping altogether. 

A new offence will be created, namely:

A person commits an offence who, without lawful authority— 

(a) immobilises a motor vehicle by the attachment to the vehicle, or a part of it, of an immobilising device, or 

(b) moves, or restricts the movement of, such a vehicle by any means, intending to prevent or inhibit the removal of the vehicle by a person otherwise entitled to remove it. [section54(1)]

However, there is a specific exclusion if the restriction of movement of a vehicle is by way of a fixed barrier as long as it was present before the car was parked.

But, where the restriction of the movement of the vehicle is by means of a fixed barrier and the barrier was present (whether or not lowered into place or otherwise restricting movement) when the vehicle was parked, any express or implied consent (whether or not legally binding) of the driver of the vehicle to the restriction is, for the purposes of subsection (1), lawful authority for the restriction. [section54(3)]

It is unclear at this stage whether a "fixed barrier" will include a chain across a drive, for example. 

It will not be possible for a person to consent (expressly or implied) to have their motor vehicle's movement restricted, so a sign stating cars will be clamped if they park on the land will be of no effect. 

There is no reason currently that a charge cannot be made for parking on land or as a penalty as long as consent (whether express or implied) can be shown perhaps by suitably clear signage etc. (and subject to planning permissions etc.) 

After all, private car parks such as NCP rely on this principle of a contract to make a charge for parking in their car parks. It is no different if a landlord wanted to make similar charges for using the space or as a penalty. The critical factor is ensuring there is no question that the person parking the car was undoubtedly aware of the contract terms and the price they would have to pay.

Before the new rules, the charge could only be made against the vehicle driver because they were the one accepting the contract. There was no way of enforcing the contract upon the vehicle's keeper unless you could prove the keeper was driving at the time of parking, and this would usually require CCTV footage or similar. 

Schedule 4 of the Protection of Freedoms Act 2012  contains a very detailed procedure for making a charge for car parking on land. 

Crucially, schedule 4 allows the land owner/occupier to charge the vehicle keeper if the driver's whereabouts are unknown. 

A "parking charge" is defined in Schedule 4 as:

(a) in the case of a relevant obligation arising under the terms of a relevant contract, means a sum in the nature of a fee or charge, and

(b) in the case of a relevant obligation arising as a result of a trespass or other tort, means a sum in the nature of damages,

however the sum in question is described;

Since the schedule commenced on 1 October 2012, a creditor has the right to recover any unpaid parking charges from the keeper of the vehicle [para 4(1)] but only if specific procedures are followed (see below) and the car was not stolen when it was parked [para 4(2)]. 

The right may only be exercised after 28 days from when notice to the keeper was given [para 4(4)]. 

The specific procedures (known as conditions) mentioned above are:

The creditor (landlord, for example) must be unable to enforce the charge against the driver because the creditor does not know both the name and a current address for service for the driver [para 5]. (Therefore, if the driver is known, the creditor must pursue the driver and not the keeper for the unpaid charge.)

Either:

2A. The notice must have been given to the driver specifying certain prescribed information (like a local authority PCN). The notice must have been given before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and while the car is stationary, by affixing it to the vehicle or by handing it to a person appearing to be in charge of the car [para 7]. 

In addition, a notice to the keeper must also have been sent within 28 days, which like the notice affixed to the vehicle, must contain certain prescribed information. The notice must be given by handing it to the keeper, leaving it at a current address for service for the keeper within the relevant period; or sending it by post to a current address for service for the keeper so that it is delivered to that address within the applicable period [para 8] Or, 

2B. In the alternative, a notice to the keeper, basically the same as that described above, must have been served within 14 days (compared to 28 days if a notice has been affixed to the stationary vehicle) [para 9]. 

Note: The notices to the driver and keeper described above may also be required to contain evidence of the parking. Such evidence may be prescribed in secondary regulations, but no secondary rules have been produced.

The creditor must have made an application for the name and address of the registered keeper of the vehicle during the period of parking under section 22(1)(c) of the Vehicle Excise and Registration Act 1994 within 14 / 28 days and have received back the requested information [para 11].

Any prescribed requirements must have been met at the beginning of the period of parking to which the unpaid parking charges relate. 

These requirements may be made by secondary legislation and could include:

• Requiring signs to be displayed on any relevant land;
• Those signs to contain prescribed content; and
• They will need to be located on the land as may be prescribed.

However, there are no plans to introduce secondary regulations, so any signs may be produced as long as they are visible (sufficiently to create a contract).