REVIEW
‘This (The Freedoms Bill) is providing the greatest challenge to the private
parking sector, but it will lead to a much fairer environment for the motorist and more professionalism within the sector,’ said Clark. He explained that when the clamping ban was announced in 2010 it was opposed by the BPA because it removed the primary deterrent available to landowners and their agents against trespassers or people transgressing parking regulations. Clark said: ‘We wanted to continue to offer landowners the ability to enforce parking on their land, albeit in as fair a way as possible to the motorist. We lost the initial debate, but then went to the government to fight the corner on behalf of the landowners.’
If clamping was no longer to be an option, then the BPA wanted the landowner to have an alternative form of protection. The BPA believes that ticketing will be problematic, not least because operators who sullied the name of the industry by using ‘cowboy clamping’ methods are just as likely to be rogue ticketers, if there are no controls or sanctions against them. As there is no statutory duty for operators to join a trade association, these people can continue to operate outside the voluntary code of practice. One measure the government is offering landowners is the ability to access keeper details. Clark clarified this: ‘In essence this is not keeper liability, but it is putting the onus on the keeper to say who the driver was at the time.’ The bottom line with keeper liability is that if the driver cannot be traced and the keeper refuses to say who the driver was at the time of the offence, then the keeper becomes liable in a civil court.
The government’s offer of keeper liability comes with a proviso. For the private car parking sector to be given access to keeper liability, the sector must establish an independent appeals service. And there are five criteria the IAS must meet: it must be independent; the adjudication must be binding on the operator; data access will only be given when tickets have been issued by members of an accredited trade association; it must be funded by the sector; and it must be free to motorists.
Clark said that the creation of an IAS was a logical step. ‘This creates a fairer landscape and gives motorists somewhere to go. At the moment any appeals regarding tickets issued on private land go to operators who have made the notice, which is obviously not independent.’ Under the IAS, which is due to launch in October to coincide with the clamping ban,
20 MAY 2012
motorists will in the first instance make a representation to the operator.
If this initial appeal is rejected, then the operator must inform the motorist about the appeals service and explain that the motorist has the right to appeal the decision. If the appeal goes against the operator, the BPA will investigate but the operator will also have a chance to appeal the decision. Clark said that there were many legal points still under discussion, but at each stage the BPA would communicate with AOS members, stakeholders and the public.
PARKEX REPORT Parking challenges
AN OLYMPIC CHALLENGE In a year when London is hosting the Olympics and the whole of the UK is celebrating the Diamond Jubilee, the government has introduced the Freedoms Bill, which takes away the lion’s share of the enforcement powers currently enjoyed by private car park operators, who are likely to find themselves busier than ever as the UK parties. Such was the picture painted by the BPA director of technical services, Kelvin Reynolds, as he explained why it might be a great year for the UK but it would be a challenging one for parking operators and managers. ‘We introduced the AOS Code in 2009,’ said
Reynolds, ‘and as a result both professionalism within the industry and compliance with the demands of the code are improving. But the Freedoms Bill is not going to stop the cowboys.’ What the Bill does mean for the industry is a big transition in a relatively short time. But change would not happen overnight: companies would be expected to change their signage and their systems of operation and compliance with the code will be audited six months after the Bill becomes statutory. ‘The public will expect clamping to cease on 6 October but that will not be the case. Transitions will be taking place, but full compliance will take much longer.’ There remains much confusion surrounding the nuts and bolts of the AOS renewed Code, known as Code 2012. The BPA is still trying to convince the government that all parking operators and ticketing companies should join an accredited trade association. Otherwise, as Reynolds points out, it is still not fair to the motorists. There is still uncertainty about keeper liability and how much power the legislation gives an operator to force a keeper to identify a
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