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).