The murky laws around car clamping have come to the fore after an exposé on a New Plymouth man who was abused and assaulted for doing his job.
TV3’s current affairs programme 3rd Degree showed footage of New Plymouth clamper Daniel Clout being confronted by police and being told his job was unlawful because he didn’t have a licence.
Police believe Mr Clout should have been registered as a security guard under the Private Security Personnel and Private Investigators Act but Mr Clout disagreed, saying he wasn’t a security guard.
The Act doesn’t specify whether clampers fall under the definition of a security guard.
Locals took a similar view to the police, with parking infringers verbally abusing him, assaulting him and calling the police whenever Mr Clout clamped vehicles parked in private car parks.
Canterbury University associate law professor Cynthia Hawes says there are many grey areas in clamping laws and the 3rd Degree story showed police were “unwise” to give out legal advice about it.
“What they appeared to be doing was encouraging the risk of violence when people were already upset […] Having fights in car parks is never a good idea.”
She says the best way for this to be sorted out is for legislation to be introduced that “spells out” the legality of clamping.
The current lack of clear regulation
There is no single, clear law that outlines what a car clamper can and cannot do. It is instead outlined in a combination of common (case) law, contract law and trespass law.
Last year, a voluntary code of conduct was introduced by the Government but only signed by five parking operators around the country – including Mr Clout’s company.
The code states there must be clear, visible signs that warn parkers of the consequences of parking a vehicle on the property.
But the code of conduct is not an enforceable law, it is merely an agreement.
The law
The Ministry of Consumer Affairs website outlines the different legal elements relating to car park fines, towing and clamping.
There are a number of options under the law that give property owners the right to clamp cars parked on their land without permission.
These are:
Common Law
- The land owner or operator can use the common law doctrine of ‘distress damage feasant’ to clamp a car which is parked on their property.
- Distress damage feasant comes from an old trespass law to help landowners seek damages from straying livestock.
- It means if a person parks on private land and interferes with the land owner or operator’s right to use their land, the person’s car can be clamped.
- The land owner can keep the vehicle clamped until damages are paid for.
- The vehicle owner cannot be present when the car is being clamped because it could lead to a breach of the peace. However it is not clear what would happen if the clamper is part way through clamping a car.
Contract Law
- Signs or information displayed by the car park’s owner or operator are an implied contract that a person automatically agrees to if they park there.
- If a person breaches the contract – for example by parking for too long – then the operator can claim for damages and charge them reasonable costs.
Trespass Law
- A person is trespassing if they park on private land without permission. This includes private car parks, a car park restricted for certain shoppers, and overstaying in a paid car park.
- The land owner or operator can take legal action for the trespass and claim damages or an injunction to prevent further trespass.
- This includes the ability to clamp or tow the person’s car.
- Under trespass law, private land owners do not have to display signs warning people that their cars will be clamped. But if they do have signs, the landowner has stronger legal grounds in court.
Planned changes
The convoluted nature of these laws has prompted Labour MP Phil Twyford to lodge a private member’s bill to amend the Land Transport Act.
Mr Twyford’s bill would require clear, Government-authorised signage, clampers to be licensed with special ID cards, only one clamp per vehicle and fines no higher than $50.
If clampers breach these planned laws, they would be fined $2,000.
The bill hasn’t been pulled from the ballot yet and could sit there for years before it begins a process through Parliament to progress into law.
3 News
source: newshub archive
