‘Clamping ban may cause free-for-all’
Friday 31st July 2009, 2:58PM BST.
Fears over parking free-for-all
A BAN on wheel clamping would lead to a free-for-all in St Helier, car park landlords have warned.
They say that a ticketing system to replace clamping would be difficult to enforce and landlords needed a redress against people determined to park where they should not.
The issue was in the headlines this week after St Helier Deputy Paul Le Claire lodged a States proposition calling for clamping to be outlawed.
Yesterday, the JEP reported that Home Affairs Minister Ian Le Marquand considered the practice to be unlawful.
Ben Ludlam, the property director at Le Masurier which owns the car park between the former Odeon cinema and James Street, said that he supported a clarification of the law on illegal parking. However, he warned that banning clamping in favour of a ticketing system would lead to a free-for-all.
• See Friday’s JEP for full story.
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We do need a deterrant to prevent people from parking where they should not. Private car parks should be well signed with very clear notice of the penalty for trespass. The private Gas Place site used to have a barrier which would stop anyone without a pass from entering the car park, why was this removed. I have returned many times to the space I pay for to find it occupied by a rogue parker.
Inevitably they would say that they were only stopping for5 mins but 20 people a day stopping for 5 mins can mean you can’t park in your own space.
What we really need is proper regulation with the morons currently doing the job being replaced by state regulated enforcers.
Some people are just plain lazy, stipid or selfish and will park anywhere they can.
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I agree wheel clamping is bad but on the other hand I have second hand experience of a car owner who used to use a family members estates visitor parking as his own.
Until clamping was introduced he even resorted to chaining up his wheels so he could not be towed away. Now they all have to use visitor parking cards, vistors can only use the spots for a certain amount of time etc all becasuse of the actions of a person who does not live there.
So, as you can see unfortunatly, without wheel clamping people like him will just shove their cars wherever they want and dont give a monkeys about others.
Maybe we could just advertise a fine and have the states backing that offenders will be forced to pay that fine if we cant have clamping.
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Further to my previous comment (on the initial news story) regarding Housing and Property Services both using wheelclampers on States owned property, if it is unlawful as suggested by the Home Affairs Minister and former Magistrate then how is it that the DVS can justify providing details of the registered owners of vehicles to the private clamping companies?
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I would suggest everyone goes and parks in Paul Le Claire’s and Ian Le Marquand’s spaces and houses and see how they like having their property used without permission.
Just because the states can use the police and the law to remove cars/fine drivers private people can’t do this.
Why can’t these two States members live in the real world if you don’t park on private property you don’t get clamped.
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So when you park up on private land, change your number plates, if your clamped cut the clamp off. The clamper will then have a photo of a car and J plate they cannot chase for payment. NEVER drive off the private land without the correct J plate on your vehicle as this would be against the law!
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Oh Dear, what a tired old ploy the greedy fearmongers trot out when they can’t have their own way….look out everybody there’ll be a free for all….! hardly likely and given that folks have been ripped and intimidated it won’t kill the clampers to go about things lawfully and properly from now on,and there are places where quite honestly it ought to be Free for all….or at least affordable.
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Matt Webb, #2 Re: DVS information
Because they’re allowed to give out information to those with a reasonable requirement to obtain the information; for example a land owner who wants to know the identity of a trespasser.
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It has been in the interest of commercial landowners to use the practice of clamping as an inexpensive way to police their car parks, thereby avoiding the erection and maintenance of barriers. Their interests and the general assertion of private property rights have inhibited action by government. Thousands of motorists have not only experienced the rudeness, harassment and inconvenience of the clampers, they have also parted with many thousands of pounds in “fines”. Government and Crown Officers have ignored public complaints. So why the change?
A campaign for abolition of clamping, begun early last year, stalled when the Minister of Home Affairs, Wendy Kinnard, reluctantly forced to act, endorsed the status quo in the Green Paper issued by the department. The English model of legalisation and regulation was to be followed.
The objective change that has allowed the campaign for abolition to advance again is a change of leadership in the form of a new Minister, Senator Le Marquand. Whilst Magistrate, he actively hindered the clampers by refusing them judgement against motorists until there was a Royal Court ruling and is now sympathetic to abolition.
A policy U-turn looks likely. A proposition for the abolition of clamping stands a chance of success.
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It is illegal to clamp a motor vehicle which is parked in a public place or on a place to which the public has access as a matter of fact. An example of the latter would be a pub car park. See the Royal Court judgment in Gosselin v Attorney General 1990 JLR 102. It may be found on the excellent Jersey Legal Information Board website.
There are further legal considerations arising from the fact that the charges are penalty charges rather than the contractual fiction upon which the clampers rely.
If you are forced to pay money to a clamper, the answer is simple. Pay under protest and then sue in the Petty Debts Court. If the individual clamper will not give his name [which, as a responsible security professional, he should do], that can be used as evidence when the time comes.
The DVS is on shaky legal ground when it gives out information which is subject to data protection to anyone other than the police.
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Let us be clear here, those of us who have campaigned for clamping to be outlawed are not suggesting the private landlord should be denied a remedy for trespass.
Clamping has been illegal on private land since 1991 in Scotland and it has not lead to a free for all. On the reverse side, regulation has been so ineffective in England, Parliament is about to re-legislate.
A private ticket system is very workable for a professional security company. The courts would uphold reasonable fees plus reasonable costs, where signage is clear and there is sufficient evidence that the vehicle was trespassing and caused a material loss or inconvenience to the landowner.
Don’t let these companies kid you it is unworkable, it’s merely harder. The proper way to recover a debt is through Petty Debts. After all if you overstayed in Sand Street would you find it acceptable for the States to immobilize your vehicle until you paid cash.
If you disagree with a parking ticket you have the right of appeal in the Magistrates Court, is it not appropriate you should have a right of appeal for a private fine.
Finally can anyone give me an example in modern life of one individual being able to enforce a civil debt by means of confiscating another’s property without the lawful authority of a court.
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what about the legality of priviliged parking then?
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Emma Martins owes an explanation here,with data protection, why is sensitive information being freely given out to people whose only interest is profit,and who clearly are not interested in the welfare of the person whose details have been given out, to say it’s in the interests of the clampers is obvious, so if it’s done by phone could be anybody asking about anyone and or spurious..this needs a serious answer,for if data protection laws have been breached in the name of commercial profit.she can expect to be put under surveillance and wake up surrounded by squad cars and have her house ,computer and contents raided perhaps….?
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I am just wondering if this clamping is Illegal or legal,am wondering as they take cash in hand for payment to get your car unclamped,how do we know if this is recorded for tax purposes ?? Should there be evidence of the supposed clampers recording who they have clamped and what it was for!!!! Or is this just another money making scam which the states want in on….??
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David, the example you seek is in contract is it not i.e. you can withold payment until the contract is met. For example if I purchased a television on finance which was faulty, I could withold paying off the debt on the basis that the television which I was provided with was faulty and did not meet the description it was meant to. When the def. sues me for not paying off the debt I would have a viable defence and counterclaim which would probably be upheld by the court. I can think of many other examples part. in shipping.
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My point is it is unlikely the def. would sue for the debt because it would probably lose. So I could in fact keep the the def’s property without the court getting involved.
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@ David #10 Paragraph by paragraph.
1. Most of those who want to outlaw clamping, do just that; without suggesting any reasonable or practical alternative.
2. Do you want Jersey just to follow other countries, or think and legislate for itself? Rather than copy someone else, why not lets find the right answer for Jersey?
3. I partly agree, but those unlawful parkers generally don’t, they don’t want to pay. You say that the courts *would*; wishful thinking, they won’t.
4. Landowners find it unworkable because the courts do not act in the way YOU think they should, there’s also the issue of the DVS registration database being criminally inaccurate which frustrate a landowner taking this course of action.
I’m not saying your idea doesn’t have merit, just saying it’s not a new idea, and until the courts can be reasonable enough to agree with you, I and other right-thinking people it isn’t going to happen.. which leaves clamping.
5. If I take my suit to be cleaned I won’t see it again until I pay for the service I’ve used. If I park at the States of Jersey airport I can’t get my car out of the car park until I’ve paid for the service I used.
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J Lamborrari #16 paragraph by paragraph.
1. I think I have detailed an alternative, a view shared by the Home Affairs Minister, a former Magistrate.
2. Not sure what you mean by following other countries, there are only 3 scenarios; regulate it, ban it, or ignore it.
3. The Courts have in the past thrown the claims out because of unreasonable charges and lack of evidence. Charge a reasonable amount plus costs, show photographic evidence of signage and the offending vehicle and you would win.
Are the clampers worried that the Courts might start to differentiate between the genuine trespasser and the hapless motorist who has been ensnared? Thus killing the cash cow. Are your points about controlling parking or making money and punishing all those naughty motorists.
4. I would love to moot the finer points of contract law, but with great respect I decline.
Many of those with a vested interest are beginning to sound like drowning men.
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Would people expect car park landlords to say anything else?
Who said ‘barriers’ cause that sounds like a good solution.
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@ David #17
1. The only alternative you’ve detailed is a ticketing system, which isn’t prectical or reasonable until it’s supported by the courts; it isn’t. As you go on to make the point, it is subject to contract law, something you won’t dicuss I image because you would contradict your own arguments.
2. You brought up the other countries approach in your post; seemingly making the point that regulation has not worked in England, and that in your opinion Scotland’s banning of clamping has worked. This supports your view that Jersey should ban it, ignoring the fact that Jersey does have the choice the regulate it, but it would need to do better than England. Ignoring this choice isn’t helpful.
3. The courts have also thrown out cases with reasonable charge, plenty of evidence, clear and obvious signage and signed contracts in place accepting liability: why? because they feel it is too difficult a call for petty debts and that the Royal Court, with all it’s costs must hear these cases. I think that is neither a practical or reasonable use of the plaintiff or the court’s time.
Please stop heaping all parking control together as profitering; what about those landowners who try and control their land reasonably, not for profit? Just because one firm have a thug working for them doesn’t mean all act the same. As I’ve asked before; if a shopkeeper is a thug and gives terrible service should retailing be banned??
4. I answered your question. It’s interesting that you chose not to discuss a subject that in doing so would weaken your argument.
Luckily I have no vested interest being neither clamper, landowner or unlawful parker; but I agree, many of those that unlawfully parking are beginning to sound like they’re drowning men, even if they can’t/won’t accept it. I’ve no doubt they’ll continue to be vocal when they’re caught out, but it will not change the fact they’ve broken the law.
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Illegal parking in private car-parks can have a serious effect on small businesses. If you own a shop e.g. Midland Stores and have a small car-park facility this could service over hundreds of customers over a day. If the spaces are not available because someone has “popped in” to the house next door this can lose you dozens of customers an hour.
The truth is some people are just lazy – park in a public car-park or accept the consequences.
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