What the wheel clamping ban will cost you

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Deterring unauthorised vehicles from your premises is a developing subject

Wheel clamping on private land started during the late eighties in the United Kingdom.

It was controversial from the start. The actual wheel clamp technology originates in North America where the Denver Boot, first used in the city of that name, soon became the instrument of choice to impound vehicles on the spot, although later rivalled by many other designs.

The legal justification of using the clamp and towing away is based on Common Law and its doctrine of distress damage feasant whereby the owner of land has the right to keep anything that had caused damage and/or loss until after the owner has paid restitution. Originally, this was used on straying animals.

At one controversial period in English legal history landowners used mantraps to literally trap human trespassers who ventured onto their land. This was made illegal subsequently. The use of this method to trap animals might, in certain unusual conditions, be allowed, bearing in mind the draconian animal cruelty laws extant.

This deep foundation in the ancient Common Law provided the wheel clamping industry with the legal justification for both:

  • Paralysing the vehicle
  • Asking for the release fee as the precondition for the release of said vehicle

This proved hugely unpopular with the motoring public and it was only the clamper and the landowner who jointly and severally benefited; many thought the release fees were exorbitant and not infrequently the law courts upheld the angry motorists.

As a contrast to the heated arguments and even physical violence going on south of the border, Scottish law banned the clamp in 1992. The Scottish judges deemed the use of the clamp as ‘obtaining money by menaces.’

There had been in Truro, England a case at law (Arthur vs Anchor) in which the high court upheld the clamping company’s actions. This in effect legalised the industry and encouraged the practice

The intervention of the Security Industries Authority (SIA) in 2005 that took the form of training and licensing clampers did not take the sting out of the situation.

The Royal Automobile Club (RAC) decided to appoint a barrister, Chris Elliott, to investigate the legal aspects of wheel clamping. Dr Elliott wrote an extensive report published on July 9, 2009 in which he decided that any kind of clamping was in fact a breach of human rights.

The RAC Foundation then opined that wheel clamping was indeed a breach of human rights.

The question of the ‘fines’ has raised hackles and most people were and are of the view that they are exorbitant, especially as no legal process as such was taking place.

If a motor car is clamped this is a consequence, one assumes, of it causing an obstruction on somebody else’s land and clamping it actually prevents the driver from putting right the obstruction, the premier motoring body declared to, no doubt, applause from the powerful motoring lobby.

At about the same time the Citizens’ Advice Bureau gave the motorist the following guidelines:

‘If you feel you’ve been made to pay unfair clamping and towing charges Citizens Advice is offering the following tips:

  • If you’ve been clamped don’t try to remove the clamp yourself. Any damage to the clamp could be considered criminal.
  • Unfortunately with clamping and towing it’s likely you’ll have to pay the charge to get your vehicle released, and then seek a refund.
  • Ask to see formal identification from the clampers and make a note of their SIA licensing number. If they can’t prove they are licensed by of the Security Industry Authority (SIA) they may not be and you should report them to the SIA. (Note: SIA cannot take on your case and have no powers on the fees charged.)
  • If you can, take as many pictures as possible to back up your case, including where you’ve parked, any distorted or poor signage and the fees listed on site, in case it turns out to be lower than what you are being asked for.
  • When you pay, state you are paying under protest and if you can, write this on any document retained by the clamper. You must be given a receipt for the payment you make, which should show the information you will need to complain, including the SIA licence number and where you parked in relation to the fine.
  • If you feel you’ve been unfairly charged report them to Consumer Direct (08454 04 05 06 ) so that the Office of Fair Trading (OFT) and your local Trading Standards can pick up on the information and take action.
  • If you need advice on parking, clamping and towing visit your local CAB’

Between April 2006 and March 2009 the number of parking enquiries dealt with by Citizen's Advice Bureaux (CAB) rose steeply and the advice body said evidence from those cases suggested that the approach taken by private parking companies was ‘disproportionate’ to the problems they were trying to tackle.

The situation was worsening and there appeared to be no acceptable solution. Finally, in August 2009 the LibDems announced that they were about to start the procedure for a statute outlawing both the clamp and towing away in England and Wales. We expect this to be active law sometime in early 2012. The statute in preparation is the Freedom Bill.

There are various physical methods of stopping unwanted parking. These include:

  • Rising bollards
  • Swing gates
  • Barriers
  • Electric gates
  • Parking posts
  • Using private security firms
  • Automated Number Plate Recognition (ANPR)

The unifying feature of all the above is that they command varying and continuing prices. Just one rising bollard can cost £2,000 at the very least plus installation plus maintenance and repairs. Electric gates can be about £5,000 plus installation plus continuing costs. Hiring security staff increases the wages and salaries expenses. ANPR is designed and costed to appeal to only large scale establishments such as chain store car parks and government property.

With regard to clamping and towing away the payment of the fee is justified by elementary contract law. The compulsory warning notices constitute the ‘offer to treat’ in law. The parking of the vehicle constitutes an ‘acceptance’ of the ‘offer.’ The fee for release in the case of clamping and towing amounts to the ‘consideration’ in law.

In legal cases about clamping that come to trial, the courts carefully consider whether or not the warning notices are really visible enough to justify saying that the driver is aware of the price for parking. They also judge whether or not the release fee is reasonable in law.

This raises the question of what the small and medium scale property owner is to do about unauthorised parking after the aforesaid Bill becomes law, as it will.

One answer is the brainchild of an innovative company called Flashpark in which the founder developed a system that uses the massive resources of the World Wide Web.

Essentially, the method this firm uses requires the property owner or his agent to take a photograph of the vehicle with a digital camera in such a way that:

  1. The vehicle itself, including especially the number plates
  2. Its general surroundings
  3. The warning notice that constitutes the ‘offer to treat’

Are all three clearly visible.

The landowner then emails the photographic evidence to the company who, being authorised to do so by the authorities, notifies the registered owner by post of the charge after consulting the DVLA register.

The property owner receives a proportion of the fee from the company because it was his property that the motorist had used. Almost all readers of this article for whom the United Kingdom is home will have seen ‘Trespasses will be prosecuted’ notices marking properties. Strictly speaking, in law, the prosecution will only yield damages if the trespasser has become responsible for actual loss and/or damage to the property. The mere physical straying onto, say, a farmer’s land does not, in itself, constitute the ground for the court to give the farmer any damages.

It seems to us that the modern solution innovated by that company, as summarised above, is the best available method at this time of addressing the problem available to people of moderate means. There are some or many who want to consider the alternatives in greater detail than as stated above. The rest of this article is dedicated to them.

The rising bollard

Caption 1: The fixed bollard.

Caption 2: The rising bollard.

Caption 4: The rising barrier.

Generally, the two major types of bollard are the fixed and the moveable. The fixed is highly useful in our anti-terrorism and anti-crime focused culture in which motorised access to certain places has to be physically forbidden. Government establishments and the kind of business (such as a jewellery store) where the ram-raider is a real menace make the fixed bollard a vital aspect of building and grounds security. The would-be purchaser of just one fixed bollard can expect to pay between about £125 £150 at the time of writing, plus installation fees.

The removable bollard which, as the name suggests, is a bollard that gets manually (usually) removed to allow the access and egress of certain vehicles commands a price largely as high as the fixed bollard.

The rising bollard is in certain circumstances a sensible precaution for high-security establishments where unauthorised access has to be stopped, almost whatever the price. Banks and defence establishments come to mind. Certain short YouTube videos give graphic descriptions of actual vehicles crashing into rising bollards. Our enquiries show that for a set of, say, ten rising bollards the directors can expect to pay up to approximately, at the highest:

  1. Purchase from £20,000 to £25,000
  2. Installation between £5000 and £15,000
  3. Annual maintenance contract between £2,500 and £4,500

As you can readily reckon, the above prices might reflect economies of scale and the cost per unit rises as the quantity falls.

Raise-arm barrier

This is the familiar post with arm that rotates in an arc of a circle from horizontal to bar access to vertical to permit access.

The virtue of this way is that, usually by remote control, the unauthorised car or other vehicle is denied entry by a physical barrier – literally.

One disadvantage is that sooner or later, somebody is going to crash into the horizontal arm and/or the post thereby occasioning all manner of ill-tempered repercussions.

Manufacturers puff that their machines can and will link to different kinds of control systems such as: Proximity cards, various remote controls, identification labels, keypads and even entry by tokens and coin-operated mechanisms.

The manufacturers claim that raise-arm barriers are low-maintenance. Owing to the complicated control systems behind them and the ever-present danger of collision that might be a tad optimistic, or not.

Barrier chain

Our enquiries indicate that the purchase price per barrier chain unit averages around £130 plus installation.

This, we think, appeals to the property owner wanting to deter the unauthorised motor vehicle in the context of non-high security requirements. Educational establishments and a wide range of businesses want this level of security.

Swing gate

Caption 3: The swing gate.

These fall into the manual and the electric.

The prospective manual swing gate purchaser can expect to pay from about £400 to £600 plus installation costs plus subsequent repair costs.

The electric swing gate is a different matter. Very to extremely approximately the general breakdown might turn out to be for ‘bottom line’ costs that the accounting department pays:

  1. Purchase price of the gate £1,500 to £1,900
  2. Installation from about £2,000 to £3,000
  3. Maintenance per annum from about £1,000 to £3,000

The settings of the gate and whether or not the road has to be dug up and where the motors are to be installed and whether or not to have sensors and crash/crush zones around the apparatus are all variables until the installer has made a detailed on-site inspection with an equally detailed list of specifications from the property owner.

A typical manufacturer puffs that his product is just the thing for unmanned roadways and situations with low traffic volume. This maker says that his product can be locked in either the closed or in the open position.

The level of security is low but this way is probably OK for controlling access to places that nobody is likely to be desperate to enter without permission, such as ordinary car parks.

Often this way of controlling traffic makes the task of operating the arm easier by using a counter-weight.

It is simple and, within limits, effective.

The electric gate

Caption 5: The sliding electric gate.

Caption 6: The swinging electric gate.

The two chief types of electric gate are:

  1. The sliding electric gate
  2. The hinge-based electric gate

And furthermore, there is one enormous difference that distinguishes the electric gate from the swing gate which is that while the latter has to be bought as a swing gate, almost any gate whatsoever can be ‘converted’ into an electric gate..

This brings us to the question of the ‘kit’ one has to buy to automate the aforesaid gate. We have done our research and have found that the cost ‘over the counter’ ranges from about £275 to many hundreds of pounds more.

The installation is most probably the highest price commanded here. As in the case of the swing gate mentioned above, the installer will probably not give an estimate until after a detailed on-site inspection during which he will:

  • Assess the ground surface and what lies beneath
  • The weight, shape and size of the gate
  • The surrounds, especially the crash/crush zones on either side of the gate
  • Customer’s specific requirements such as where the motor is to be placed and the type of sensory equipment, if any, for example, whether or not it is to be button operated.

Parking post

Caption 7: The (hinged type shown here) parking post.

This is so obvious it barely requires a description. Definitionally, we suppose it can be summed up as a post fixed into the ground that can be removed as and when an authorised vehicle comes along.

In the cases of both the parking post and the manually removable bollard, one disadvantage is that somebody, either the driver or the property owner or the property owner’s agent has to leave the car or the building to remove the obstacle to the vehicle’s progress.

The manufacturers puff that their fortunate customers can easily lock and unlock these posts so that in the unlocked positions they can be folded down. They say that even after a vehicle has got into the parking space it can be re-erected again with the vehicle behind it. This will, they claim, prevent theft of the vehicle, as opposed to the parking space.

Sooner or later, somebody is going to lose his/her key with the usual petty dramatic consequences and additionally, someone is going to accidentally drive into the post. Who pays?

As is the case of the manually operated rising bollard and raise-arm barrier the driver or someone authorised by the landowner will have to go out in the snow, hail, rain or whatever and operate the mechanism.

Private security firm

Caption 8: The private security firm.

This method is so obvious it barely justifies a description. The accountancy department will, of course, note with regret the increase in the ‘wages and salaries’ expenses in the company’s annual trial balance.

Automatic number plate recognition (ANPR)

Caption 9: The ANPR system.

This method is really only for the largest concerns such as central and local government and the biggest and richest companies.

It is based on high-speed cameras recording the vehicles’ number plates and then authorising or refusing to authorise according to whatever is next in the computer programming.

The whole matter is immensely complex and might lie outside the scope of this article.

Just to give you an indication of the level of detail required, the creators of any ANPR system will have to computer program:

  • Number plate localisation
  • Number plate orientation and sizing
  • Normalisation
  • Character segmentation
  • Optical character recognition
  • Syntactical/geometrical analysis

Into the suite of computer programs.

Where the scale of the requirement warrants it, this way of doing things is time-saving, depending on what the purpose is.

In at least one country, motor vehicle drivers pay ‘road tax’ via a kind of ANPR so that automatic number plate recognition sensors transmit information directly and electronically to a billing/invoicing department so that the registered bank account for the vehicle is debited each time the vehicle passes the camera. Therefore, the long-distance driver pays more for his journey than the short-distance one.

With all the physical barriers to unauthorised parking there are disadvantages that include:

  • Wear and tear from weather, time and use
  • Damage caused by collision
  • Fiddling of the control systems with cloned keys and cards etc

We think that for the ordinary property owner, whether private or corporate, the method précised, as it were, above involving the use of the Internet offers and delivers the best option at the time of this writing. With the camera and the Internet there is no physical parking barrier to attack and, particularly when the operator is elderly, or disadvantaged in some other way, there is a very much smaller risk of bruising confrontations.