knowledge | 3 November 2017 |
Vehicle Clamping and Property Owners: Signage, Appeals, Record Retention and More
Owners and occupiers and anyone in control of property, where clamping takes place, are advised to take more than a personal interest in the Vehicle Clamping and Signage Regulations 2017 (the “Regulations”). In regulating all aspects of the clamping and release process, the Regulations place specific and detailed obligations on not just clamping operators, but also on anyone responsible for enforcement of the parking rules in both private and certain public areas. This means that in areas where clamping takes place, owners, developers, management companies and managing agents all need to be familiar with the new regime and what it means for them.
What has changed?
Vehicle clamping activities in Ireland are now regulated by the National Transport Authority (the “NTA”). This change came into effect on 1 June 2017 with the commencement of certain sections of the Vehicle Clamping Act 2015 (the “Act”). Exercising its powers under the Act and with effect from 1 October 2017, the NTA has now brought in the Regulations, providing for more detailed regulation of clamping activities.
Who is affected?
The Act and the Regulations apply not just to clamping operators, but also to “parking controllers”, being anyone responsible for enforcement of the parking rules in private and certain public areas. Even where a clamping operator is engaged by the parking controller, the parking controller remains primarily liable for compliance with certain requirements including signage, the appeals process, the retention of records and the provision of information to the NTA.
The Act and the Regulations also apply in part to state or semi-state authorities who control and manage State infrastructure eg DAA (in respect of clamping at the State’s airports), Dublin Port Company and other port, fishery and harbour authorities (in respect of ports and harbours) and CIE and Irish Rail (in respect of bus and rail stations). As might be expected, the Act and the Regulations differentiate at times between the requirements for privately owned areas and areas controlled by state or semi-state authorities and also in terms of how they apply to public roads.
How are public roads affected by the Regulations?
The Regulations apply in part to public roads, but the Road Traffic (Immobilisation of Vehicles) Regulations 2017 (the “Road Traffic Regulations”) have also been introduced specifically for public roads, to update the form of clamping notice to be used and the release charge for vehicles clamped on public roads.
What is provided for in the Regulations?
Among very detailed regulations including relating to the clamp itself, the clamping operator’s vehicle, the clothing to be worn and personal identification to be carried by clamping operators, and the evidence of the breach to be retained, the main provisions of the Regulations include:
Very detailed signage requirements (covering size, dimension, content and location) to apply from 1 April 2018 to all clamping places other than public roads.Signs already in place on 1 October 2017 which, except for the display of a new clamping symbol, comply with the new requirements, may be kept in place until 31 December 2020, but subject to approval by the NTA.
Except for public roads, a new grace time for non-payment, so thatwhere the driver’s breach relates to payment of a parking charge (whether that breach is non-payment or under-payment), 10 minutes must be allowed from the time the breach is detected before a clamp is fixed and 24 hours must be allowed, again from the time the breach is detected, before the vehicle is removed or relocated.
For private areas only, new maximum fees (inclusive of VAT and any other charges whatsoever) for removal of clamps and release of vehicles that have been relocated. The Road Traffic Regulations, mentioned above,set the fee for the removal of a clamp fixed on public roads. Other public clamping places (state infrastructure effectively) are not affected by this aspect of the Regulations.
New requirements in terms of the form and content of the notice indicating the clamp has been fixed including the reason; the time and date that the breach was detected; the time the clamp was fixed; that no attempt should be made to drive the vehicle; and the steps that need to be taken to have the clamp removed. The Road Traffic Regulationsset out the form of notice required where the clamp is fixed on public roads.
New set timeframes within which clamps must be removed, so that clamps must be removed within 2 hours of receipt of payment of the release fee. If a vehicle is relocated, the vehicle must be made available within 1 hour of receipt of payment of the release fee, unless it has been relocated to a pound, where this is subject to the normal opening hours of the pound. If a clamping operator fails to remove a clamp or release a vehicle within the required time limits, the release fee must be refunded by the clamping operator to the person who made the payment and the clamp is to be removed at the earliest opportunity, with no further liability for the driver.
New procedures to be implemented by parking controllers for any person who wishes to appeal the decision of the parking controller or clamping operator to clamp or relocate their vehicle. The Act requires that the parking controller must make a decision in respect of the appeal application within 21 days of receipt of the application. Regulation 16(a) of the Regulations introduces a requirement to submit the appeal in writing or in electronic form, in accordance with the appeals procedure put in place, within 60 days from when the vehicle was first clamped or relocated. No fee may be imposed for the making of an appeal.
Clamping records to be securely held by parking controllers and made available by parking controllers to the NTA on request.
Potential Liability for Parking Controllers
Owners and others in control of parking, whether on private or public lands, will most likely engage a clamping operator to provide clamping services, but it remains the responsibility of the owner or other parking controller to ensure that the signage required by the Regulations is complied with; that the appeals procedure is set up and available; and that clamping records are retained and information provided to the NTA, all in accordance with the Regulations. Where the NTA considers that a parking controller has not acted in compliance with the Act, it can apply to the Circuit Court for an order directing compliance.
If a parking controller fails to comply with signage requirements in the Act and the Regulations, they commit an offence and are liable on summary conviction to a class C fine (up to €2,500). A parking controller who charges a clamp release charge or relocation charge greater than the charge displayed in accordance with the Regulations is also liable on summary conviction to a class B fine (up to €4,000).
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.