Parking on private land FAQs
Frequently asked questions regarding parking on private land including subjects such as the Protection of Freedoms Act, Keeper Liability and POPLA, the Independent Appeals Service
Information provided by britishparking.co.uk/
What is the Protection of Freedoms Act?
The Protection of Freedoms Act is a piece of legislation, passed by the Coalition Government in order to return ‘freedoms’ to the British public that they feel have been eroded or removed over time through the implementation of other legislation. It deals with a wide range of issues including reforms of the Criminal Records Checks and storage of DNA data but the element which relates most to the parking industry is a ban of vehicle clamping and removals on private land without lawful authority.
The Act and its guidance notes can be read on the Government’s legislation website which you can access by clicking here.
Click on the button labelled ‘Expand All Explanatory Notes (ENs)’ to see further information.
Why has the Government banned wheel clamping?
Legislation was passed by the previous Government in 2010 with the intention to regulate vehicle clamping and removals on private land. However during the General Election of 2010, the Liberal Party’s manifesto was committed to banning wheel clamping on private land. Upon forming the Coalition Government, this commitment was put into practice with the formulation of the Protection of Freedoms Bill towards the end of 2010.
When did this ban take effect?
1st October 2012.
Why has it taken so long to come into force?
The formation of all legislation must go through due Parliamentary process, enabling proper debate in both the House of Commons and the House of Lords to ensure – as far as possible – that there is consistency and fairness. In that time, the BPA campaigned, on behalf of the industry, for a number of changes to the Bill.
Although, we achieved a great deal with regard to closing the loophole on Keeper liability (see below) and securing the first Independent Appeals Service for car parking on private land, the government insisted that a comprehensive ban on vehicle clamping and removals on private land without lawful authority was necessary.
Where does this ban apply?
The clamping ban applies on all private land in England and Wales unless there is some other ‘lawful authority’ in place which allows clamping and/or removal of vehicles. The ban includes private land which belongs to local authorities. Clamping and towing away on private land has been banned in Scotland for some time already. In Northern Ireland the ban will not apply.
Who retains ‘lawful authority’ to remove or immobilise vehicles?
“‘Lawful authority’ will apply in cases where specific legislation is in force which allows for vehicles to be immobilised, moved or have their movement restricted.
There are obvious examples such as the public roads, where Road Traffic Regulations authorise local authorities and the police to clamp or tow vehicles. Other statutory authorities also retain the ability to clamp, such as the DVLA and the Vehicle and Operator Services Agency (and their agents) where vehicles are not road worthy or have not had their vehicle tax paid. In addition, there are also parking areas where particular local laws (called bye-laws) have been created that provide for parking enforcement.
A good example of this is some railway station car parks. Under the Transport Act 2000, bye-laws were made which allow for vehicles in some railway station car parks to be immobilised or removed.
There are many other organisations and public bodies which have ‘lawful authority’ to immobilise, move or restrict vehicles through legislation such as Acts of Parliament and local bye-laws. These include bodies which exercise control at airports, ports and harbours, strategic river crossings and some common land.
Owners of private car parks cannot gain ‘lawful authority’ to clamp or tow a vehicle by obtaining the driver’s consent to doing so. However, they can obtain lawful authority to restrict vehicles by the use of fixed barriers, as are often used at the entry and exit points of car parks, if they have the driver’s consent. This consent could be provided by the driver choosing to park in the car park where the use of the barriers has been made reasonably clear.
If one of my clients wants a car clamped or removed, how can I advise them?
If your client needs to have a vehicle removed from their land and they or their land does not benefit from having ‘lawful authority’, they must contact the relevant authorities to remove the vehicle. This will usually be either the police service or the local authority who may decide to arrange for the vehicle to be removed. If a vehicle has been abandoned on their land, the process is different from enforcement of a vehicle that is left on private land. The Keep Britain Tidy Campaign has information about dealing with abandoned vehicles.
What will happen to me if I clamp or tow away now that the ban is in effect?
If you continue to clamp, tow or otherwise immobilise a vehicle without ‘lawful authority’ now that the Act is effective, you will be breaking the law as set out in the Protection of Freedoms Act 2012 and, if convicted, you are liable for a fine of up to the statutory maximum. You will also be in breach of the BPA Code of Practice and it is likely your business will be suspended or expelled from the BPA and the Approved Operator Scheme.
How will this work?
The Act describes a process which allows you to write to the keeper seeking payment when a parking ticket remains unpaid for a specified period. The keeper has three options: firstly, if they believe the ticket was wrongly issued, they can appeal it, firstly via the operator and, if their appeal is unsuccessful, they can then appeal to POPLA (For further information visit the POPLA website: www.popla.org.uk). If they believe the ticket was fairly issued they can make the payment. Thirdly, they can tell you who was driving at the time, in which case you should seek payment from them. Ultimately the keeper can be made legally liable for payment.
Why is this process different to that in place for Local Authorities where the keeper is liable automatically?
Parking on private land is managed under the law of contract or tort of trespass and only the driver can enter into a contract or commit the act of trespass. The Protection of Freedoms Act does not change this principle. What it does do is allow you to seek payment of any charges due as a result of a breach of contract or an act of trespass from the keeper when the driver cannot be identified. This is different from road traffic law where the keeper is responsible in law regardless of who was driving at the time.
As the appeals service has been set up by the BPA, how can it be independent?
One of the conditions of the introduction of keeper liability is that the private parking sector has an Independent Appeals Service. To ensure independence and impartiality the BPA appointed London Councils, a recognised and respected body that has been providing independent adjudication for London for nearly 20 years, to set up a Parking on Private Land Appeals service (POPLA). It employs legally qualified professionals, who have complete judicial independence to decide on cases. For further information visit the POPLA website: www.popla.org.uk
I already offer an appeals service of my own to motorists, why is this not sufficient?
Under the new arrangements motorists will still be required to write to the operator who issued the parking ticket to seek redress but where the dispute cannot be resolved the operator will be required to offer the motorist access to the Independent Appeals Service. The Independent Appeals Service offers an extra layer of security to the motorist.
Why is the decision of the Independent Appeals Service binding on the operator but not binding on the motorist?
Parking on private land is managed under the law of contract or tort of trespass and only the driver can enter into a contract or commit the act of trespass. The Protection of Freedoms Act does not change this principle. Nor does it change the legal right to justice through the Courts. Motorists will always have the right of redress through the Courts and this cannot be taken away. However, the Government has insisted that the decisions of the Independent Appeals Service must be binding on the operator. This can be achieved through the AOS Code of Practice.
In requiring the BPA to develop an Independent Appeals Service, Government placed five conditions on the service:
a) That it be free to the motorist
b) That it must be funded by the private parking industry
c) That it is binding on operators
d) That it is independent and seen to be independent
e) That it is available for all tickets issued by a member of an ATA
Can a motorist access the appeals service without making an appeal to the operator first?
No. Under the new arrangements motorists are still required to write to the operator who issued the parking ticket to seek redress but where the dispute cannot be resolved the operator will be required to offer the motorist access to the Independent Appeals Service. The Independent Appeals Service will not consider an appeal from a motorist who has not first contacted the operator who issued the parking ticket. For further information visit the POPLA website: www.popla.org.uk
What can I do if I disagree with the decision of the Independent Appeals Service?
Ultimately everyone will always have the right of redress through the Courts and this cannot be taken away.
We are currently clamping on housing estates owned by a local authority housing trust. Are they a lawful authority under the new Act?
No. Being a local authority in itself does not provide ‘lawful authority’ to remove or immobilise a vehicle; there must be some other statutory power to remove or otherwise enforce, such as the relevant traffic management regulations.
All local authorities’ private land will be covered by the clamping ban and, interestingly, Schedule 4 of the Act which extends keeper liability to parking tickets issued on private land, will not apply to any parking provided or controlled by local authorities. This means that local authorities private land enforcement will be limited to the issuing of parking tickets with driver liability, or the need to resort to full regulation using road traffic law.
Local Authorities may not rely on Schedule 4 and require the keeper to identify the driver where the ticket has been issued on private land provided or controlled by a local authority and where it could use its Road Traffic Regulation Act 1984 powers to regulate and enforce parking, such as estate roads and associated parking areas. They may only rely on Schedule 4 in other circumstances, such as trespassing or on land where parking would not normally arise, such as a playing field or parks and open spaces for example. This applies regardless of whether the LA manages the land itself or contracts out the parking management.
Are tickets issued prior to 1st October 2012 but chased after 1st October 2012 able to benefit from keeper liability?
No. Keeper liability can only apply to parking tickets issued in accordance with the Protection of Freedoms Act Schedule 4. It should also be noted that the driver is the person who entered into the contract, or trespasses, and is initially liable for any payments due as a result of the breach of contract or trespass. Schedule 4 simply introduces a duty on the vehicle keeper to identify the driver, failing which the keeper becomes liable.
Can the term ‘contraventions’ be used with reference to the independent appeals service?
It is preferable if the word ‘contravention’ is not used. The phrase ‘breach of the terms and conditions for parking’ is more appropriate. For further information visit the POPLA website: www.popla.org.uk
What does the independent appeals service adjudicate on – points of law and/or the Code of Practice?
The independent appeals service considers aspects of law. It will determine whether a motorist has complied with the terms and conditions of the contract or committed trespass and, if so, whether the enforcement action is fair and reasonable and who is liable for payment of any charges as a result. The Code of Practice will be a reference document for the independent appeals service and if the appeal identifies activities which do not comply with the Code of Practice they will be referred to the BPA for investigation in the normal way.
If a case is referred back to the operator on a point of mitigation, will another charge be made for that appeal?
No. Each case lodged with the independent appeals service will incur a standard case fee regardless of the simplicity or complexity of the case and the outcome. The decision of the independent appeals service will be binding on the operator who issued the parking ticket. The independent appeals service has the scope to refer an appeal back to the issuing operator for further consideration if additional mitigation arises.
Can an operator appeal a decision on a point of law?
The BPA Code of Practice requires that the decision of the independent appeals service is binding on the operator who issued the parking ticket. The BPA Code of Practice does not deny the operator any legal remedies available to them in the justice system. Where an operator believes that a point of law should be challenged, rather than the decision in the particular case, normal legal remedies could apply.
How long is the transition period be for the implementation of new signs, etc.?
This has been set out in the new Code of Practice.
What if my tickets are not called PCNs? Will the adjudicator find against me?
Parking Charge Notice is a general term used to describe notices to drivers who have committed a trespass or a breach of contract. The BPA Code of Practice describes the situation where this term might be used and where the abbreviation might be used. It is not defined in law.
We are a university; how do we deal with tickets issued to foreign students?
The nationality of the driver is not relevant. Remember, under contract law it is the driver who enters into the contract (see above) and the Protection of Freedoms Act 2012, Schedule 4 says that, in certain circumstances, the keeper has a duty to identify the driver assuming that parking tickets were issued in accordance with Schedule 4. Universities should be in a good position to understand who the driver might be from their own records. It is always better to use local information rather than contact DVLA for keeper details, as they should be a last resort. In any event DVLA will not hold data on foreign registered vehicles.
Can you please advise what procedure, if any, a council has to undertake if they want to take a car park from management under TMA and pass it on to the private sector to be operated under contract law?
Our interpretation of the Act regarding this area is as follows:
• Car parks that are within a Civil or Special Enforcement Area (C/SEA) may be enforced using TMA 2004 powers only. They may not be managed under contract law. There is no way back from a C/SEA.
• TMA enforcement requires a Traffic Regulation or Parking Places Order under Road Traffic Regulation Act 1984. Local authorities can also enforce Parking Place Orders under the 1984 Act if they are not within a C/SEA
• TMA camera enforcement may only be used in accordance with rules set out in Statutory Guidance and Operational Guidance (see Chapter 7) which requires the use of ‘Approved Devices’.
• There are, to our knowledge, no ANPR Approved Devices on the market. Manufacturers could apply for their equipment to be listed as an Approved Device but there are procedures and rules to follow. See Operational Guidance Chapter 7. (Wales Government is running a trial at present with ANPR International and Denbighshire Council).
• The TMA Keeper Liability cannot apply to local authority land managed under Contract Law and the Protection of Freedoms Act 2012 form of ‘keeper liability’ specifically excludes local authority land too.
• Membership of an Accredited Trade Association is required by a parking company (or local authority) if access to DVLA data is required for parking management purposes on private land.
So, if the car parks are private land, and not within a C/SEA and not covered by a 1984 Act TRO/PPO, then Contract Law and ANPR could be lawful. Otherwise it’s unlikely to be the case.
We are a hospital and have been using clamping signs as a deterrent, with regards to certain areas within the hospital, for instance around A&E. The deterrent effect of the signs alone has worked for years. After 1st October will it be unlawful to have these signs still in place?
Having signs which threaten to clamp serves no purpose where it is unlawful to do so. It may not be the signage which is the issue. What it is important to remember is that the Protection of Freedoms Act 2012 makes it generally unlawful to immobilise or remove a vehicle without lawful authority (see FAQ on lawful authority). If parking on private land needs to be managed it should be done so in accordance with the needs of the expected users providing services and facilities as required.
It is important to note that if an operator has signs that only refer to clamping and it wants to change to ticketing, these signs should now have been changed - in essence a contract will not have been formed if this is not done. If the signs advise that the enforcement is either clamping or ticketing, then there will be a transition period for such signs to be changed which is outlined in one of the appendices of the new Code. If an operator has problems with achieving the transition deadlines set out in the new Code, it should make contact with us and agree a specific roll-out plan.
Will the contact details for POPLA (the independent appeals service) need to be shown on signage or parking notices?
The new independent appeals service, or POPLA (Parking on Private Land Appeals) as it is known, is provided by London Councils. The Protection of Freedoms Act in Schedule 4 sets out the requirements for notices and signs and this information is reflected in the BPA Code of Practice for the AOS. In essence, if you wish to rely on the provisions of Schedule 4 then details about how a motorist can appeal must be included in signs and notices.
Please confirm if the recommended charge level of £100 is for the lower or the higher rate? I have seen other companies with a fee of £150 is this acceptable?
There is no higher and lower rate for parking charges on private land. The BPA Code of Practice for the AOS sets out how parking charges should be determined and we would not expect them ordinarily to exceed £100. Where parking operators who are members of the BPA wish to exceed this charge then they would be expected to be able to justify the charge.
If operating by ANPR and not issuing a ticket what is the agreed time frame before contacting the DVLA for keeper details? Will all signs need to advertise this?
If you are enforcing using ANPR technology, or you find that you must send a Parking Charge Notice by post, you must contact DVLA to request the details of the registered keeper as soon as you are able to. This is because the motorist may not be aware that they have breached the rules of your car park, and must be informed quickly. Schedule 4 of the Protection of Freedoms Act gives guidance on this, but essentially it says that the Parking Charge Notice must be delivered to the keeper within 14 days.
We are responsible for managing land on behalf of a local authority. We are very concerned about how we can provide reliable access to the bays and, more importantly, how we keep our emergency accesses/bin rooms and footways clear of illegal parking, without the ability to tow the offending vehicles away. Can you define what "lawful authority" is and whether local authorities can acquire it?
For the purposes of car parking enforcement and the Protection of Freedoms Act, ‘lawful authority’ means any land where legislation allowing enforcement [including the right to clamp or remove] exists, or where an authority is empowered by legislation to enforce the law. In most cases, this means land where Road Traffic Regulations may be enforced, although it can also mean land where local bylaws have been created that allow for parking enforcement. ‘Lawful authority’ also enables DVLA to clamp and remove untaxed vehicles, and it empowers certificated bailiffs to carry out the wishes of the courts. Also see the FAQ ‘What is ‘lawful authority’?’
If no ‘lawful authority’ [to clamp or remove] exists then enforcement is limited to the application of a notice to the driver or keeper (as defined in the Protection of Freedoms Act 2012), although the police service can remove a vehicle on private land if it is causing obstructing to an emergency access route for example. Local authorities can also remove vehicles which it believes to have been abandoned on open land.
In order to create ‘lawful authority’, a public body with the ability to create local regulations and bylaws would need to either create a Parking Order or create bylaws that enable the enforcement of parking by vehicles on that land and including provisions to clamp or remove.
If a local authority made an off street parking places order (under section 35 RTRA 1984) could someone who received a ticket challenge it on the basis that they were parked on a highway within the estate and not an off street parking place?
Penalty Charge Notices would be issued by or on behalf of the local authority in roads and parking places regulated using Parking Place Orders and /or Traffic Regulation Orders made under The Road Traffic Regulation Act 1984. These can be challenged in the statutory appeals services only. It would be a matter for the Adjudicator to decide. The BPA Approved Operator Scheme, its Code of Practice and the Independent Appeal Service (POPLA) have no jurisdiction in this situation.
Should all Approved members take photos of the offence? Is this required by law/legislation?
There is no legal requirement to take a photograph to prove that a parking contract has been breached or that a motorist has trespassed on private land. However operators may do this as part of their enforcement activity to provide evidence in the case of a dispute.
Where an operator uses camera enforcement as the main means of gathering evidence, for example car parks using ANPR technology, then every vehicle entering and leaving the car park could be photographed.
All photographs taken would be subject to protection under the Data Protection Acts.
We are currently carrying out a ticketing service on local authority housing land to manage permit areas. An interpretation of the new legislation seems to indicate that for this to continue the LA will have to create section 35 traffic orders and carry out enforcement under TMA or cease operating. Is this the understanding of the BPA?
Ticketing operations may still continue if the land is unregulated as the Protection of Freedoms Act can be used in this case. However if the traffic orders or parking orders are created, then the legislative process must be used, which already has automatic keeper liability and an established independent appeals service.
Does ‘keeper liability’ apply to local authorities’ private land?
Local authorities may not rely on Schedule 4 and require the keeper to identify the driver where the ticket has been issued on private land provided or controlled by a local authority and where it could use its Road Traffic Regulation Act 1984 powers to regulate and enforce parking, such as estate roads and associated parking areas. They may only rely on Schedule 4 in other circumstances, such as trespassing or on land where parking would not normally arise, such as a playing field or parks and open spaces for example. This applies regardless of whether the local authority manages the land itself or contracts out the parking management to a private operator.
Does a local authority need to be a member of an Accredited Trade Association if it wants to manage parking on its private land under contract law?
Yes. DVLA has an absolute requirement that local authorities requesting keeper details from DVLA registers for the purposes of managing parking and/or trespass on private land must be members of an Accredited Trade Association (ATA), a status held by the British Parking Association.
What does it cost for a Local Authority to join the Approved Operator Scheme?
The membership fees for the AOS are the same for everyone. They can be found here: http://www.britishparking.co.uk/Fees
Can removal logos be retained as the Police have been given authority to act on private land where necessary?
This is particularly relevant to hospitals and housing associations.
Office of Fair Trading guidance to us is that they will not look favourably upon organisations who have signs in place that outline enforcement action that they are not able to carry out.
What is the cost per appeal and is VAT applicable to the charge or already included?
BPA Council has agreed that the per appeal charge for the IAS will be £27 per appeal +VAT.
What wording will be required on the Parking Charge Notice to advise people of the independent appeals service?
Operators will need to mention that there is an independent appeals service but must primarily outline their company’s appeals procedure and make it clear that this is the first line of appeal. The motorist will not be able to bypass the individual operator’s appeal process. Suggested wording is supplied within the Appendices to the Code.
Is it correct that, with the independent appeals service, there is no facility for personal hearings, and that all cases will only be considered via e-mail or correspondence?
All appeals will be in writing - either by post or e-mail.
Will there be a telephone customer service facility available for motorists for general queries on the appeal process?
Yes, there will be a call centre facility for motorists where they will be able to make general queries on the appeals service. For further information visit the POPLA website: www.popla.org.uk
Is there a formal appeals pack structure?
Yes, there will there is recommendations as to what an ’appeal pack’ should contain and the have been communicated to members of the AOS by POPLA.
What is the response time for appeals to be dealt with?
It is expected that the appeals service (POPLA) will have dealt with appeals within 35 days of first receipt from the motorist. It is expected that the more straightforward appeals will be resolved in a significantly shorter time.
A flow chart describing the process has been published in the new Code of Practice.
Will the appeals service decline to deal with appeals that have not been through the operators’ own appeals process?
Yes. This is one of the principles that underpins the appeals service. If an operator has made a mistake, it should be given every opportunity to rectify before a third party becomes involved. Procedures will be introduced to ensure that this does not happen, including the use of a 10 digit code which will need to be included within any appeal rejection correspondence.
Is the appeals service limited to a ’yes’ or ’no’ decision (with supporting reasoning), or can they suggest accepting payment at other than the full value charge?
It is not expected that POPLA will reach decisions other than ’yes’ or ’no’. If the adjudicator believes that there is compelling evidence of mitigation that should have been considered by the operator during their review of the appeal, they may make contact with the most senior representative of that operator and ask them to review the decision originally made. There would be no requirement to change this decision, but to review it.
What advice would you give on leaving existing clamping and removal signage in place after the ban on October 1st?
Consumer Protection legislation won’t allow you to advertise something that you are not going to do. Where a sign advertises clamping only as enforcement, it must be removed as soon as possible. Where you are advertising clamping or ticketing as methods of enforcement, you do have a few months to change those signs but, ultimately, they do have to be removed.
Does the independent appeals service apply in Scotland?
No, the Protection of Freedoms Act has not been taken up by the Scottish Government, and so POPLA will not be offered in Scotland – or Northern Ireland.
How will spurious appeals be dealt with by POPLA?
POPLA has a spurious and vexatious appeals policy. For further information visit the POPLA website: www.popla.org.uk