Cowboy clampers and the loophole

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The Protection of Freedoms Act comes into force on 1 October 2012 and amongst other things will prevent clamping and the removal of vehicles by people who do not hold authority to do so on private land.

Certain legislation allows vehicles to be removed by people such as the Police, DVLA and other public bodies and will continue to do so; this legislation's purpose is to remove the threat of rogue clampers.

If you have a vehicle which needs removing from your private premises because it is causing a nuisance or has been abandoned you will need to contact the Police or your local authority. 

You will not be able to immobilise or remove a vehicle but you may be able to reposition the vehicle on the same site where it is not causing such an obstruction or danger. You will have to absorb the cost of this.

This will inevitably lead to a rise in parking tickets being issued to vehicles by companies who previously would have clamped as a result of a driver parking in breach of their terms and conditions.

With this in mind the Act also deals with the current loophole in the law in respect of private landowners issuing tickets to keepers who subsequently deny they are the driver, as a defence to a claim. The Act imposes a duty on the keeper of the vehicle to identify the driver when enquiries are made by the landowner or his agent; failing which the keeper becomes liable for any parking charges due as a result of the breach of contract or trespass.

The principles of contract law are not changed by this Act. The driver of the vehicle is still liable when entering the contract if they breach it, by driving onto the private land and parking their vehicle in contravention of the terms and conditions. The change the Act imposes is that when the driver cannot be identified by the landowner or his agent, it now provides recourse to seek damages from the keeper. This is different to public land remedies which makes the keeper answerable in any event. The keeper's options are to name and shame the driver or pay on their behalf.

This contentious and changing area of law will be of interest to landowners, drivers and keepers of vehicles alike.