The Minister for Transport, Tourism and Sport, Paschal Donohoe TD, today (Tuesday) introduced the Vehicle Clamping Bill 2014 to Seanad Éireann (see full speech below). The Bill, which aims to regulate clamping for the first time on both public and private property, meets a commitment contained in the Programme for Government.
Under this Bill, the National Transport Authority (NTA) is being given the function of regulating clamping activities wherever they are operated. The main areas that will be regulated by the NTA are the setting of maximum clamp release and vehicle relocation charges; ensuring that appropriate signage is provided in areas where clamping is carried out; and the establishment of appeals and complaints procedures. The NTA may also establish a code of practice for the purpose of establishing standards and providing practical guidance to clamping operators in carrying out their duties.
Minister Donohoe said: ‘This is an important piece of legislation which will deal with an issue which has long proved an irritant for motorists. I believe that most motorists appreciate that clamping can be a necessary part of enforcing parking control measures. However, when it comes to clamping, the area of greatest annoyance and disquiet to the motoring public is often the variation and inconsistent clamp release charges currently being applied in privately owned car parks’.
“Road space and parking facilities, whether on public or private lands such as shopping centres and sports stadia, are a limited resource and their use needs to be managed for the benefit of all road users. However, as there is currently no regulation of clamping activities carried out on private land, public concern often centre around the activities of some clamping operators, particularly regarding the variation in clamp release charges, poor or non-existent signage and the absence of a clear and accessible appeals process.
“It is therefore appropriate that clarity be given 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. Through this Bill the NTA will in future regulate these activities and bring a greater degree of transparency to clamping operations. This Bill is also in the long-term interest of everyone working in the industry as a better regulated clamping sector is a safer and more sustainable business for those employed in it.”
The Bill has been initiated in the Seanad and it is hoped to have it enacted by year-end.
Ends
Vehicle Clamping Bill 2014 Second Stage – Seanad Eireann
Speech by Minister for Transport, Tourism and Sport, Paschal Donohoe TD
Check Against Delivery
A Cathaoirleach,
I would like to thank the Seanad for the opportunity to introduce today the Vehicle Clamping Bill 2014.
This Bill 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 activity 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 level and variation in clamp release charges currently applied, the lack of a clearly identifiable and accessible clamping appeals process, and the oftentimes absence of appropriate information signage for motorists.
Currently, section 101B of the Road Traffic Act, 1961, as amended, provides for the clamping and or relocation of vehicles illegally parked on a public road by either a member of An Garda Siochána, a person appointed in writing by a local authority, or a traffic warden. However, there is currently no regulation of clamping activities carried out on private land.
The practice of clamping or relocating vehicles on private property does not come within the scope or the spirit of road traffic legislation. Such legislation tends to relate only to activities on “public roads”. 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 owner. However, in such latter circumstances 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 members of the public as apply to clamping activities currently carried out under statute.
It is therefore appropriate that clarity be given by the Oireachtas 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.
It is in this context that 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 outlined the principal issues to be addressed, together with proposals on the shape of appropriate legislation and 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.
The discussion document presented to the Joint Oireachtas Committee outlined a number of options by which the issues of public concern in relation to clamping might best be addressed. These options included: banning clamping; whether or not proposed legislation should be confined to clamping activities on private property only, or to both private and public property; or allowing clamping operators to self-regulate.
The document also outlined how proposed regulation of clamping activities might be applied. For instance, in introducing legislation should the primary focus be on those individuals or companies undertaking the clamping activity or, alternatively, should the circumstances and requirements for the application of a clamp to a vehicle be regulated instead? The issue of whether or not the related activity of towing should be regulated was also considered.
The broader issues of who might regulate; how regulation might be funded; what requirements should be adhered to before clamping a vehicle; 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 presentations to it or to submit written submissions for its consideration.
The range of stakeholders attending those hearings or making 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; officials from my Department and other interested parties.
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 are:
- the designation of the National Transport Authority (NTA) as regulator of clamping activities;
- the setting of maximum permissible clamp release charges on private lands;
- the establishment of a two-tier appeals process;
- an obligation to provide clear and prominent signage in areas where clamping is operated;
- the establishment of codes of practice to provide practical guidance regarding compliance with regulatory requirements;
- regulating the means of identification to be carried, displayed and presented by clamping operatives; and
- the setting appropriate penalties for breaching provisions of the Bill or regulations made under it.
This Bill does not provide for the registration and licensing of clamping operators and the associated vetting of staff employed by clamping operators. Although the provision of such measures were outlined in the General Scheme of Bill approved by Government in March 2013, after detailed consideration of the issues involved including extensive consultation with the Office of the Attorney General, these provisions are not included in the Bill that I am presenting today.
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 this Bill seeks to address.
In the final analysis, the introduction of a statutory licensing regime was deemed to be excessive and too costly to implement, both for the taxpayer and for clamping operators alike. Due to the relatively small number of sizeable parking enforcement/clamping operators in existence, the public would have been ‘hit on the double’ for the establishment of such a regime. They would 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.
Also, such a regime, by its very nature would undoubtedly have focussed exclusively on clamping operators. This would have presented difficulties in making provision for those individuals, who of their own accord, without contracting the services of a clamping operator, chose to clamp vehicles on their own private property.
Taking cognisance of all these very real and pertinent considerations, we 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, an individual, or a contracted party such as a clamping operator, either on public or private land.
This Bill recognises the fundamental importance of regulating the actual activities associated with clamping so that the issues of public concern can be addressed. It provides for the statutory regulation of clamping activities irrespective of the location in which they are carried out. Corresponding sanctions for the breach of such regulations, as well as associated powers of direction in relation to compliance, are also being provided for. The Bill also contains enforcement powers, including powers to prosecute, in relation to non-compliance with the provisions of this Bill or regulations made under it.
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 areas of parking, be they local authorities in respect of public roads, State agencies in relation to their parking areas or owners of private lands, will continue to determine parking policy and appropriate parking controls. What this Bill says 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 are carried out needs to be regulated. There is a clear need to establish broad rules governing these activities and it is the manner in which these rules can be achieved which has required detailed consideration.
It is also self-evident that local authorities have a responsibility in ensuring effective traffic management in towns and cities, as well as in relation to the corresponding utilisation 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 must not be exercised to the detriment of the individual motorist. These competing rights and responsibilities must, 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 legitimate 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 first-stage appeals process.
Main Provisions of the Bill
I will now give a broad outline of the main provisions of the Bill which comprises six Parts.
Part 1 deals with technical matters such as the short title and commencement, definitions of frequently used terms, laying of regulations and orders and matters relating to regulations made by the NTA. It also allows for further places where clamping is carried out under statute to be brought within the ambit of this Bill.
This latter provision is noteworthy in that it acknowledges the legal delineation under which clamping has been carried out in Ireland for a number of years now. In regulating clamping activities in a non-discriminatory manner across both the public and private spectrum, for legal reasons, this Bill distinguishes between those places where clamping takes place under an existing enactment, referred to in the Bill as “statutory clamping places”, and all other places, which are referred to as “non-statutory clamping places”.
Examples of “statutory clamping places” include the public road and parking areas operated by State bodies such as CIE, RPA, harbour companies, State airports, and such other places as may be specified by the Minister. “Non-statutory clamping places”, in the main, refers to private land or car parks in places such as shopping centres, sport venues, retail outlets and apartment blocks where clamping is carried out under private contractual arrangements.
This distinction also recognises the legal difference between instances of unlawful parking on the public road and on certain State lands, as opposed to wrongful parking which may occur on private property where certain parking terms and conditions may not have been complied with.
Part 2 provides for many of the recommendations suggested by the Joint Oireachtas Committee relating to the regulation of clamping activities which, in respect to private property, is currently unregulated. I am confident that the specific activities regulated for in this Part of the Bill, address the regulatory lacuna that has existed heretofore in respect of the operation of clamping activities on private land.
Wherever clamping activities are carried out, whether on the public road, on land belonging to or operated by a statutory body, or indeed on private property, such activities will have to be carried out in accordance with the provisions of this Bill. Specifically, this Part confers on the NTA the two central functions of regulating clamping activities and providing for a complaints and appeals procedure.
When it comes to clamping, the area of greatest annoyance and disquiet to the motoring public is the variation and inconsistent clamp release charges currently being applied in privately owned car parks.
Under section 14 of this Bill, the NTA will be conferred with regulatory powers to set the maximum clamp release and vehicle relocation charge. Under this section, the NTA will be able to prescribe the maximum clamp release and vehicle relocation charge that may be charged 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 stands prescribed by the NTA, the Bill provides that the clamp release charge will be €100 and the vehicle relocation charge will be €50.
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 relation to such charges.
The Minister, after consultation with both the Minister for Justice and Equality and the NTA, may prescribe clamp release charges on the public road.
Another issue of public contention is the oftentimes reported absence of appropriate and prominently displayed advisory signage warning motorists of clamping activities and the parking terms and conditions in areas where clamping is in operation.
Under section 10, 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 such 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 may 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.
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:
(1) the time period that shall elapse before a vehicle may be clamped;
(2) the clamp release time after payment of the appropriate charge;
(3) the means of identification of clamping operators;
(4) the form of clamping notice to be affixed to a clamped vehicle;
(5) the methods of payment of the clamp release charge; and
(6) The records to be kept in respect of clamping activities.
In this regard, 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.
Standards may be established in relation to the supervision by parking controllers of contracted clamping operators in respect of clamping activities operated on their behalf. The guiding principal in relation to the establishment of codes of practice will be to assist parking controllers across both the public and private sectors, as well as clamping operators, in properly managing the day-to-day best practice operation of clamping activities in the public interest.
Finally, this Part provides an exemption for ambulances, fire brigade vehicles or any vehicle being used by a member of An Garda Síochána or the Defence Forces, in the performance of their duties from being clamped or relocated. A vehicle displaying a disabled parking permit will be exempted from being clamped in any place where clamping is specifically legislated for under an enactment.
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.
The absence of a fair and transparent means of redress for motorists against instances of clamping is an issue which has also raised widespread public concern.
Although some clamping operators have in place appeals processes to cater for such instances on private land, there is an inconsistency of approach which needs to be addressed.
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.
The statutory procedures underpinning both these stages of appeal, as well as the timelines for receipt of a determination in relation to each, are set out in sections 18 to 21. The two-tier appeals process provided for in the Bill harnesses the role and responsibilities of those persons or bodies that engage clamping operators. Generally speaking, clamping operators are the contracted “agents” of “principals” such as retailers, hospitals and apartment management companies. It is only right that such “principals” play their part in ensuring that motorists have access to a fair and easily accessible first-stage of appeal.
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 of the Bill provides 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.
Where it is considered that a parking controller or clamping operator is not complying with the Bill or with clamping regulations or a code of practice, the NTA may direct such individuals to comply in accordance with any direction issued by them. Where the NTA, having considered representations made to it by a parking controller or clamping operator, is still of the view that there is non-compliance with a direction it has given, the NTA may apply to the Circuit Court for an order directing such compliance.
This Part also provides for the taking of proceedings by the NTA in relation to the commission of an offence under the Bill.
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.
In fulfilment of this objective on the public road, section 30 of the Bill substitutes a new section for section 101B of the Road Traffic Act 1961. This section provides for the clamping and removal of illegally parked vehicles on the public road, as well as for the prescribing of clamp release charges. In relation to the prescription of such charges I will retain my Ministerial function in this regard. However, under this section I will consult with both the Minister for Justice and Equality and the NTA before prescribing any such charges.
This section also amends the informational requirements of the notice to be affixed to clamped vehicles, particularly in relation to giving details of the two-tier appeals process operated under this Bill.
In accordance with any clamping regulations made under section 9 of this Bill, this section also provides for the time period within which a clamp shall be removed from a vehicle after payment of the prescribed release charge or its waiver, and prohibits the clamping of a vehicle on the public road by any person other than a clamping officer or a person acting under the direction of such a person.
In addition to the substitution of section 101B of the Road Traffic Act 1961, this Part also provides an exemption for a vehicle being used by clamping operators in the course of their duties in a public place, from regulations or bye-laws in relation to the parking or entry of a vehicle onto a road. However, where a member of An Garda Síochána considers that such a vehicle impedes or endangers the safety of other road users, that member may require the clamping operator to move the vehicle to another location.
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
Since the inception of this Bill, and through its various stages of drafting, every effort has been made to ensure that provisions are in place 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, establishment of an independent appeals process, and 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 have gone beyond the practice of merely submitting legislation for consideration by the Oireachtas 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.
I would like to thank the Joint Oireachtas Committee for its examination of the various issues surrounding clamping and for facilitating the various stakeholders that contributed their views through their submissions and presentations during the four days of public hearings on the matter.
I hope that Senators will support the provisions of this Bill, the broad objectives of which support the overarching recommendations of the Joint Oireachtas Committee for reforming how clamping is conducted in this country.
I commend the Bill to the House.