Regulation of clamping on public & private land will ensure transparency for motorists and provide for a right to appeal
The Minister for Transport, Tourism and Sport, Paschal Donohoe TD, today (Thursday) introduced the
Vehicle Clamping Bill 2014 at Second Stage in the Dáil. The Bill, which, when passed, will fulfil a Programme for Government commitment, will see clamping being regulated for the first time on both public and private lands (full speech below).
The Bill provides that the regulation of clamping, wherever it is operated, will come under the remit of the National Transport Authority (NTA) who will set maximum clamp release charges; will ensure the provision of appropriate advisory signage in areas where clamping is in operation; and the establishment of a two-tier clamping appeals process for motorists. The NTA may also establish a code of practice to provide practical guidance for car park owners and clamping operators in the execution of their duties.
Minister Donohoe said: ‘For the most part, complaints received by my Department over the years do not object to clamping per se but rather to unfair or unreasonable treatment, whether perceived or real, by clamping operators. Clamping has become more widespread in recent years, particularly in urban areas, and many people feel they are being unfairly treated either by excessive charges or a lack of proper signage indicating that clamping is in operation. Not having a right to appeal when they see unfairness in the system is also a cause of frustration. These issues most notably arise in privately run car parks where no regulation of clamping currently exists’.
“No-one enjoys being clamped but it can be an effective tool in ensuring that finite parking resources are not abused. In the case of clamping on private lands such as shopping centre car-parks and apartment complexes, for example, it allows land owners to deal effectively with nuisance parking that is discommoding and disadvantaging their customers and residents. Ensuring that a system place, however, that acts as a genuine deterrent is key to ensuring that the rights of both citizens and property owners are protected.
“There is a clear need to establish broad rules governing clamping activities and the manner in which these rules should be complied with. In doing so we can ensure that disreputable practices become a thing of the past and consistency, transparency and fairness are part of clamping operations into the future.”
This Bill was initiated in Seanad Éireannn last October and has passed all stages there. The Joint Committee on Transport was invited to participate in the pre-Heads of Bill stage and to contribute to the initial drafting of the required legislation leading to the production of robust and informed Bill.
Ends
Second Stage speech on the Vehicle Clamping Bill 2014 in Dáil Éireann by Minister for Transport, Tourism and Sport, Paschal Donohoe TD
Check Against Delivery
A Cheann Comhairle,
The Vehicle Clamping Bill 2014, which I am introducing today, addresses the commitment in the Programme for Government to legislate to regulate clamping.
The impetus for this commitment stems principally from public concerns in regard to the activities of some clamping operators and the extent to which clamping may be carried out in a less than fair manner, with no obvious consistent or transparent recourse to appeal against perceived abuses. The areas of greatest public concern relate to the oftentimes absence of appropriate information signage for motorists, the level of clamp release charges applied and the lack of a clearly identifiable and accessible clamping appeals process.
Currently, section 101B of the Road Traffic Act, 1961, as amended, provides for the clamping and/or relocation of vehicles unlawfully parked on a public road. A member of An Garda Siochána, a person appointed in writing by a local authority, or a traffic warden can carry out the act of clamping or relocation. However, there is currently no regulation of clamping activities carried out on private land.
The legal issues surrounding the situation whereby a clamp is placed on a vehicle in circumstances other than those provided for in existing legislation relating to the public road and certain State agencies, primarily relates to the manner of the contract between the owner of the land or car park and the car driver or vehicle owner. However, no account is taken of the need to regulate clamping activities in the broader public interest, nor do such circumstances carry with them the same transparent safeguards for motorists as apply to clamping activities currently carried out under statute.
It is appropriate, therefore, that clarity be given in legislation to this situation in order to protect the rights of both citizens and property owners alike in relation to an activity which has become an increasing feature of urban life in Ireland.
My predecessor, Minister Leo Varadkar, presented a discussion document to the then Joint Oireachtas Committee on the Environment, Transport, Culture and the Gaeltacht in December 2011 in which he set out the principal issues to be addressed, together with proposals on the shape of appropriate legislation, and he invited the Committee’s views. The Committee responded in a comprehensive report which contained a number of recommendations, the majority of which have been taken into account in this Bill.
A number of options for proceeding were contained in the discussion document. For instance, the question was posed of whether the primary focus of the legislation should be on those individuals or companies undertaking the clamping activity or, alternatively, should the circumstances surrounding the activity of clamping a vehicle be regulated instead? The issue of whether or not the related activity of relocating vehicles should be regulated was also raised.
The broader issues of who might regulate; how regulation might be funded; the setting of maximum clamp release charges; the provision of an independent appeals process; and other relevant matters were also outlined for the Committee’s consideration.
The Joint Oireachtas Committee invited a number of representative stakeholders to make oral presentations to it or to submit written submissions for its consideration.
The stakeholders who presented at those hearings or made submissions to the Committee included local authorities; representative bodies from that sector; AA Ireland; representatives of the clamping industry; business organisations such as Chambers Ireland and Retail Excellence Ireland; the Irish Patients Association; Dublin City Council’s Independent Parking Appeals Officer; the Irish Property and Facility Management Association and officials from my Department.
Those hearings and submissions raised some important and interesting matters and, after due consideration, the Committee formed the view, as part of the options for reform, that any legislative proposals in relation to clamping should ensure harmonisation in relation to the processes and procedures involved, regardless of where clamping takes place, be it on public roads or private property.
Most of the core suggestions arising from the main areas of concern identified by the Committee have been provided for in one form or another within this Bill. These include:
(1) the designation of the National Transport Authority (NTA) as regulator of clamping activities;
(2) the setting of maximum permissible clamp release charges on private lands;
(3) an obligation to provide clear and prominent signage in areas where clamping is operated; and
(4) the establishment of a two-tier appeals process.
This Bill does not provide for the registration and licensing of clamping operators. Although the provision of such a measure was outlined in the original General Scheme of Bill, after detailed consideration of the issues involved, including extensive consultation with the Office of the Attorney General, a different approach was decided upon and is set out in the Bill that I am presenting today.
It was felt that a compulsory licensing and registration regime for clamping operators, complete with the associated requirements and stipulations attaching to such a regime, would not, in terms of cost and practical effectiveness, represent the most appropriate manner of addressing the issues of public concern which had been represented to my Department.
In the final analysis, the introduction of a statutory licensing regime was deemed to be excessive and could be too costly to implement, both for the taxpayer and for clamping operators alike. Due to the relatively small number of sizeable parking enforcement and clamping operators in existence in the country, the public would have been ‘hit on the double’ for the establishment of such a regime. They could have ended up subsidising what may have been, in essence, an economically unsustainable licensing regime, while at the same time having to pay increased clamp release charges imposed by clamping operators who chose, as part of their business model, to increase such charges to offset licensing fees imposed by the State.
So it was decided that the issues arising would be more appropriately addressed through the statutory regulation of clamping activities, irrespective of the location in which they are carried out. In choosing to regulate the activity of clamping, rather than licensing the person or company carrying out the activity, the provisions of this Bill will cater for all scenarios in which a vehicle is clamped whether by a local authority, a State body, an individual, or a contracted party such as a clamping operator, either on public or private land.
In policy terms, it is not the aim of this Bill to determine in what places clamping should or should not take place. Neither does it set out to decide parking policy. Bodies responsible for parking areas, be they local authorities in respect of public roads, State agencies in relation to their own parking areas or owners of private lands, will continue to determine parking policy and appropriate parking controls. What this Bill sets out is that, if clamping is used as a means of parking control, then its provisions must be complied with.
It is entirely reasonable that landowners need to be able to deal in a fair and cost effective manner with nuisance parking. For example, in relation to the parking of cars all day in a shopping centre to the obvious disadvantage of other customers, or in apartment complexes to the inconvenience of residents, the owners or managers involved should have the right to take reasonable action. However, the manner in which clamping activities is carried out needs to be proportionate and consistent. There is a clear need to establish broad rules governing these activities and the manner in which these rules should be complied with.
Local authorities, of course, have a responsibility in ensuring effective traffic management in towns and cities, as well as facilitating the optimum use of finite parking resources on the public road. However, while the use of clamping as a parking enforcement mechanism is highly effective, the rights of landowners and the responsibilities of the State should not be exercised to the detriment of the individual motorist. These competing rights and responsibilities should, at all times, be exercised in the interests of both the individual citizen’s rights and for the good of society as a whole.
Bearing these issues in mind, I am proposing, in this Bill, to regulate clamping wherever it takes place. Irrespective of where clamping activities are carried out, this Bill will provide for the regulation of such activities in a non-discriminatory and proportionate manner across both the public and private sectors.
In essence, this Bill aims to provide a balanced regulatory framework within which clamping operators may operate, but which also protects motorists from any disreputable practices. As well as regulating clamping activities, the role and responsibilities of those persons or bodies that engage clamping operators is addressed. Under this Bill, landowners or persons responsible for places in which clamping is operated, will be obliged to provide appropriate signage in accordance with regulatory requirements, as well as providing for a statutory appeals process.
Main Provisions of the Bill
I will now outline the main provisions of the Bill which comprises six Parts.
Part 1 deals with technical matters such as the short title and commencement, definitions and interpretations of terms used, laying of regulations and orders before the Oireachtas and matters relating to regulations made by the NTA. It also allows for other places where clamping is carried out under statute to be brought within the ambit of this Bill.
Part 2 contains many of the recommendations suggested by the Joint Oireachtas Committee relating to the regulation of clamping activities. I am confident that the provisions in this Part of the Bill will address the regulatory requirements that need to be put in place in respect of the operation of clamping activities on private land.
Under section 10 of the Bill, persons responsible for enforcing the law or rules applicable to parking in a particular place where clamping is operated, referred to in the Bill as “parking controllers”, will be obliged to provide prominent regulatory advisory signage which clearly indicates that clamping activities are in operation and detailing the clamp release and vehicle relocation charges applying.
A parking controller who fails to provide regulatory signage commits an offence and is liable on summary conviction to a class C fine, that is, a fine of up to €2,500.
Other than on the public road, where the Minister will retain responsibility for regulatory signage under section 95 of the 1961 Road Traffic Act, the NTA, as regulator, will make regulations with respect to clamping signage, including their location, information content, dimensions and design, symbols to be displayed, as well as the number of signs to be provided in a particular place.
Under section 14, the NTA will be conferred with regulatory powers to set the maximum clamp release and vehicle relocation charge. It will be able to prescribe the maximum clamp release and vehicle relocation charges that may be levied in non-statutory clamping places such as private car parks and car parks associated with shopping centres, retail parks, sports stadia and so forth. Where no maximum charges stand prescribed by the NTA, the Bill provides that the default clamp release charge will be €100 and the vehicle relocation charge will be €50, or such other amounts as may be prescribed by the Minister following consultation with the NTA.
A person who imposes, or attempts to impose, clamp release or vehicle relocation charges greater than the set maximum charges commits an offence and is liable on summary conviction to a class B fine which is a fine of up to €4,000.
In statutory clamping places, such as at State airports and railway stations, the bodies responsible will be obliged to have regard to the recommendations made by the NTA in setting their charges.
The Minister, after consultation with both the Minister for Justice and Equality and the NTA, will continue to prescribe clamp release charges on the public road.
The Bill also makes provision to enable the NTA to regulate the actual physical processes involved in clamping. The principal day-to-day clamping processes that may be regulated include the time period that shall elapse before a vehicle may be clamped and the maximum clamp release time after payment of the appropriate charge.
The NTA may establish codes of practice under this Part for the purposes of providing practical guidance in relation to clamping matters. It is envisaged that standards in relation to general behaviour, performance of duties and the conduct of clamping operators in respect of the carrying out of clamping activities and their interface with the general public will be at the centre of any such codes of practice.
Part 3 of the Bill makes provision for the establishment of a complaints procedure to address issues of perceived misconduct by clamping operators in the discharge of their duties, as well as providing for a two-tier appeals process to hear appeals against incidents of clamping or vehicle relocation.
Although some clamping operators have put in place appeals processes to cater for such instances on private land, there is no uniform approach and the Bill addresses this issue.
Under the provisions of the Bill, a person whose vehicle has been clamped or relocated may appeal in the first instance to the parking controller responsible for enforcement of the parking rules within that place. Where the person is not satisfied with a determination made at this stage, that person may lodge a second-stage appeal to an independent “clamping appeals officer” appointed by the NTA.
A parking controller who fails to put appeal procedures in place commits an offence and is liable on summary conviction to a class B fine, that is, a fine not exceeding €4,000.
Also, in line with recommendations made by the Joint Oireachtas Committee, the Bill gives the NTA the power to set up a procedure to consider complaints from members of the public in relation to the discharge by parking controllers of their responsibilities and in relation to the conduct and behaviour of clamping operators.
Part 4 provides the NTA with the necessary legislative powers for enforcing compliance with the provisions of this Bill and with regulations made under it. In particular, this Part makes provision for the appointment of “authorised persons” by the NTA and the specifying of their powers of investigation. It also provides for the issuing of directions by the NTA to parking controllers and clamping operators in respect of their compliance, or otherwise, with the provisions of the Bill.
This Part also provides for the taking of proceedings by the NTA in relation to the commission of an offence under the Bill.
The Bill allows the NTA to operate a fixed payment notice system in respect of some offences committed by parking controllers or clamping operators. Similar to the fixed charge processing system under road traffic legislation, the NTA will have the power to issue notices to alleged offenders seeking a payment of €250 within 28 days. Where payment is not made within that timeframe, an additional 50% payment will apply for the following 28 days. A person who receives a notice will, of course, be entitled to defend his or her position in court if they so wish.
To emphasise the robustness of the powers of authorised persons under this Part, it will be an offence to obstruct or impede a person authorised by the NTA to investigate compliance with this Bill, or to knowingly give false or misleading information to such a person. This offence is liable to attract, on summary conviction, a class A fine not exceeding €5,000.
Part 5 provides for the application of equivalent regulatory provisions within the Bill to the public road. This is in line with the commitment to ensure that the regulation of clamping activities provided for in this Bill is harmonised across all areas. As I stated previously, this Bill will regulate clamping activities, irrespective of where they are carried out, be that on private land, the public road, or on land belonging to or occupied by statutory bodies.
Part 6 provides for the amendment of various existing statutory provisions relating to the clamping of vehicles on land belonging to, or occupied by CIE, the Railway Procurement Agency, State airports and harbours. The intention of these amendments is to bring uniformity to existing statutory provisions.
Conclusion
Through its various stages of drafting, every effort has been made to ensure that provisions are put in place in this Bill to address the issues that are of greatest public concern in relation to clamping activities. Chief among these are the setting of maximum clamp release charges, the establishment of an independent appeals process, and the provision of appropriate advisory signage in areas where clamping is operated.
Throughout this process, and consistent with Government policy, we have taken the opportunity to utilise the Oireachtas Committee system. In developing this legislation, we went beyond the practice of merely submitting legislation for consideration by the Oireachtas Committee at the Heads of Bill stage. Instead, the Joint Committee was invited to participate in the pre-Heads of Bill stage and to contribute to the initial drafting of the required legislation.
The suggestions made by the Joint Oireachtas Committee have all been considered and this, I believe, has led to a far more robust and informed Bill being produced. I would like to thank the members of the Committee for their input. The Bill has also passed all stages in the Seanad and the contributions made in that House have also improved the overall aims relating to regulating clamping and will result in a much more balanced approach in which the rights of the motorist and the parking controllers and clamping operators will be respected. I would like to give notice that I will be presenting a small number of technical amendments at Committee Stage.
I look forward to hearing the views of Deputies on the proposals and I hope to have their support for the broad objectives of the Bill, which are consistent with the views expressed by the Joint Oireachtas Committee for reforming how clamping is conducted in this country.
I commend the Bill to the House.