Is car clamping on private land a thing of the past?

The Protection of Freedoms Act 2012 was passed in order to return ‘freedoms’ to the public that the Government believed had been eroded through the implementation of other legislation. The legislation deals with a wide range of issues but in respect of parking, it bans the clamping and/or removal of vehicles parked on private land with effect from the 1st October 2012.

The clamping ban applies on all private land in England and Wales unless there is some other ‘lawful authority’ in place to permit clamping and/or removal of vehicles. The ban includes private land belonging to local authorities but as one would expect provides ‘lawful authority’ for the management of local authority run car parks.

‘Lawful authority’ exists in cases where specific legislation is in force which allows for vehicles to be immobilised or removed. Local authorities may be able to establish ‘lawful authority’ through legislation or local byelaws. It is insufficient to claim that simply being a local authority grants ‘lawful authority’.

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 byelaws that enable the enforcement of parking by vehicles on that land and include provisions for clamping or removal.

The Court of Appeal (Mummery, Jackson and Lewison LJs) has recently had cause to look at the issue of ‘lawful authority’. In Moore v British Waterways Board [2013] EWCA Civ 73, it held that the British Waterways Board (BWB) had no right to demand the removal of vessels moored to part of the canal bank adjacent to a riparian owner's land.

S8 of the British Waterways Act 1983 authorised the BWB to remove any vessel which is moored without lawful authority in any inland waterway owned or managed by BWB, after giving not less than 28 days notice to the owner of that vessel.

On receipt of such notice Mr Moore brought proceedings in the High Court which held that he did not have a right to moor vessels, except for the temporary purposes of access, loading or unloading. Mr Moore appealed the decision and claimed riparian rights to moor at common law.

 

The Court of Appeal found in favour of Mr Moore.

The court took the view that the High Court had focused on whether he had a right to moor rather than considering the central question of whether he was doing anything unlawful at common law by the mooring of his vessels alongside the canal bank. The court expressed the view that BWB's statutory power to require the removal of the vessels did not apply to any vessels moored without BWB's express permission; it applied only to vessels moored unlawfully. The court held that BWB's S8 notices were unlawful, as the presence of the vessels at a permanent mooring was not prohibited at common law or by statute.

The Court did however endorse the High Court's ruling that riparian ownership does not include a positive right to moor permanently in the canal.

 

Mummery LJ thought that in deciding whether the boat was moored “without lawful authority” the High Court should have asked whether Mr Moore was committing an actionable wrong in doing so, not whether he could point to a positive right. He cited Sir Robert Megarry V.-C in Malone v Metropolitan Police Commissioner [1979] 1 Ch 344.

“England, it may be said, is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden.”

Mummery LJ reasoned (paragraph 42) as follows:

"Although the common law does not recognise a positive riparian right to moor alongside the bank permanently, the absence of that right does not necessarily connote the commission of a wrong and the presence of an unlawful mooring. If what the claimant was doing was not a legal wrong, he was entitled to do it. If he was entitled to do it, he was not doing it “without lawful authority” within s.8, because the law allows him to do what it did not prohibit at common law or by statute."

This decision could be highly significant given that the phrase “without lawful authority” is used in thousands of statutes and it cannot be entirely satisfactory for a defence to any proceedings to be “I don’t need lawful authority because England is a free country”.

This decision could also potentially be bad news for the wheel clamping ban, however I doubt it given that consent, which was the previous lawful basis for doing so, is expressly excluded by s54(2) Protection of Freedoms Act from counting as lawful authority.

Anyone wishing to have a vehicle removed from private land but lacking ‘lawful authority’ to do so must now contact the relevant authorities to have it removed. This will usually be either the police service or the local authority who may decide to arrange for the vehicle to be removed. The current regulations made under s.99 Road Traffic Regulations Act 1984 give authorities the power (but not a duty) to remove vehicles in the circumstances described in that section. The effect of recent amendments to this power will be to enable regulations to be made which confer further powers on authorities to remove vehicles that are illegally, dangerously or obstructively parked on any land (see the Removal and Disposal of Vehicles Regulations 1986). 

While I have not as yet seen any evidence dealing with numbers, it is likely to mean that local authorities will see an increase in requests from private land owners to have vehicles removed. Local authorities can also remove and dispose of vehicles which they believe to have been abandoned on open land (see ss3-5 Refuse Disposal (Amenity) Act 1978 as amended by the ss10-13 Clean Neighbourhoods and Environment Act 2005).  

If a private landowner continues to clamp, tow or otherwise immobilise a vehicle without ‘lawful authority’ now that the Act is effective, an offence under the Protection of Freedoms Act 2012 will be committed and if convicted, the perpetrator will be liable (a) on conviction on indictment in the Crown Court, to an unlimited fine, or (b) on summary conviction in the Magistrates' Court, to a fine not exceeding the statutory maximum (currently £5,000.00).

Who, if anyone, must consent to a Council’s disposal of allotments?

The law relating to allotments is a patchwork of archaic and fragmented material having been developed over centuries.

So much was obvious when the High Court (Vivien Rose sitting as a Deputy Judge of the Chancery Division) in Snelling and another v Burstow Parish Council [2013] EWHC 46 (Ch) considered a challenge to a disposal by the local parish council from claimants who were both allotment holders.

The council wished to sell part of the allotment site in order to build housing there and while the sale would result in about ten allotment holders being displaced they could, so the council said, all be accommodated on other land either within the same site or on a new site close by.

The court accepted that the parish council had applied the correct power of sale in relation to its proposed sale (set out in s32 Small Holdings and Allotments Act 1908). Therefore, under s8 Allotments Act 1925, the Secretary of State's consent to the disposal was required as was intended.

The claimants' argument that the power of sale contained in s27 Commons Act 1876 was the correct power was rejected. Had this been otherwise then the consent of the Inclosure Commissioners would have been required and that consent could only be given if the intention was to buy other more suitable allotment land and the proceeds of any sale were not released to the allotment wardens but kept by the Commissioners until the replacement land was purchased.

The court held that while s27 of the Commons Act 1876 did not apply to the parish council's proposed sale of part of the allotment site, it was not the case that s27 was entirely redundant since the parish council had not ruled out that there may be other kinds of allotments for which the section would still have some residual effect.

Land and buildings adversely affecting amenity of the neighbourhood

The High Court (Mr Justice Leggatt) on appeal by way of case stated from the Crown Court has given guidance on the construction of s215 of the Town and Country Planning Act 1990 (as amended) in the recent case of R (Allsop) v Derbyshire Dales District Council [2012] EWHC 3562 (Admin).

There have not been many cases over the years dealing with the provisions or scope of Chapter II Part VIII of the 1990 Act which for those not in the know deals with the state of land and its adverse affect on the amenity of the neighbourhood. This is in part because LPAs have generally been slow to rely on the provisions and even slower to use the self-help powers in default.

For those not in the know the provisions broadly allow for the following:

S215 provides the power in a local planning authority (LPA) to require the proper maintenance of land and buildings. This allows a LPA, if it appears to it that the amenity of a part of its area, or of an adjoining area, is adversely affected by the condition of land in its area, to serve on the owner and occupier of the land a notice requiring such steps for remedying the condition of the land or buildings as may be specified in the notice to be taken within such period as may be so specified. The notice takes effect at the end of such period as may be specified in the notice which shall not be less than 28 days after the service of the notice.

S216 provides the penalty for non-compliance with the s215 notice so that if any owner or occupier of the land on whom the notice was served fails to take the steps required by the notice within the period specified in it for compliance with it, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000.00). There are provisions which deal with the position where either the owner or occupier changes between service and the end of the compliance period and the new owner or occupier has failed to comply in which case they may be convicted and the original defendant acquitted. There are also provisions for continuing offences and penalty for each day following first conviction on which any of the requirements of the notice remain unfulfilled.

S217 provides for an appeal to magistrates’ court against the service of the s215 notice at any time within the period specified in the notice as the period at the end of which it is to take effect. Appeal against the notice may be on any of the following grounds — (a) that the condition of the land to which the notice relates does not adversely affect the amenity of any part of the area of the LPA which served the notice, or of any adjoining area; (b) that the condition of the land to which the notice relates is attributable to, and such as results in the ordinary course of events from, the carrying on of operations or a use of land which is not in contravention of planning control; (c) that the requirements of the notice exceed what is necessary for preventing the condition of the land from adversely affecting the amenity of any part of the area of the LPA which served the notice, or of any adjoining area; or (d) that the period specified in the notice as the period within which any steps required by the notice are to be taken falls short of what should reasonably be allowed.

The s215 notice has no effect pending the final determination or withdrawal of the appeal and on such an appeal the magistrates’ court may correct any informality, defect or error in the notice if satisfied that the informality, defect or error is not material.  On the determination of such an appeal the magistrates’ court shall give directions for giving effect to their determination, including, where appropriate, directions for quashing the notice or for varying the terms of the notice in favour of the appellant. Where any person has appealed to a magistrates’ court under this section against a notice, neither that person nor any other shall be entitled, in any other proceedings instituted after the making of the appeal, to claim that the notice was not duly served on the person who appealed. Further appeal to the Crown Court is provided under s218.

The LPA may under s219 enter the land and take the steps required by the notice, and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so including the charging on the land of any expenses recoverable by it under the provision.

In this particular case, the LPA required the landowner to remove agricultural trailers from a field facing onto a conservation area. The LPA did not in fact object to the trailers themselves, but to a "lurid face" painted on the side of one of them. This position was not clear from a reading of the notice and when the council’s real intentions were ascertained the position was easily remedied. It was also suggested that it would have been open to the LPA to use either its enforcement notice powers to complain about the unauthorised or its discontinuance powers to stop what was authorised (subject to the payment of the necessary compensation).

The High Court held that s215 did not give the Secretary of State power to issue a notice that:

• Required the cessation of use of land which did not, and was not said to, contravene planning control of development of land. Indeed the Judge added (paragraph 28) that s217(1)(b) is also entirely consistent with the fact that the Act provides, in s102, a different power namely discontinuance which is applicable in circumstances where the relevant use of the land is lawful and it would cut across s102 (read in conjunction with s115 which provides for compsensation where an order is made for a previoulsy lawful use to be discontinued) if s215 could be construed in a way which allowed s215 to be used for such a purpose.

• Failed to identify the substance of the mischief at which it was directed especially as it is all the more important that those identification requirements be satisfied and they are all the more clearly to be applied in circumstances where failure to take steps required by a notice under s215 is a criminal offence (paragraph 30). 

Although the position was briefly canvassed before the court I do not believe that there is any prospect of an appeal by virtue of s28A Senior Courts Act 1981.