Private parking

Private carpark operators are writing their own rules.

Complaints about private carpark operators keep coming. But the government is relying on voluntary codes of conduct rather than regulation of the industry. As a result, there are no specific rules governing private carparks’ charges or their terms and conditions.

Private practices

Former wheel clamper Daniel Clout was in the High Court this year appealing a conviction for assault. He earned the conviction for punching the driver of a vehicle he’d clamped in a shopping centre carpark. Clout claimed he’d acted in self-defence but the judge didn’t buy it and his appeal was dismissed.

Clout was trading as Egmont Security, 1 of 5 companies which signed up to a voluntary code of conduct for wheel clampers last year. The code, championed by former Minister of Consumer Affairs Simon Bridges, was intended to convince the public this was a responsible industry where cowboy operators weren’t tolerated.

But complaints have kept coming – not only about over-zealous wheel clampers but also the towing and ticketing practices used by private carpark operators. 2 companies, Wellington firm City Towing and NZ Wheel Clamping, have recently been the subject of complaints to the New Zealand Transport Agency for alleged breaches of transport regulations.

An example of one type of wheel clamp.

Matters are more civilised elsewhere. In 2012, England and Wales banned clamping and towing of vehicles on private land. Carpark operators can still issue tickets but motorists have a right to take their case to a newly formed Parking on Private Land Appeals service.

Back here, the government has put its faith in voluntary codes of conduct rather than regulation. As a result, there are no specific rules governing private carparks’ charges or their terms and conditions.

Disputed ground

If you park in a private carpark, the operator is likely to claim you accepted the risk of being clamped, towed or ticketed because there were clear signs warning this would happen if you didn’t observe their rules. But if there are no signs or they’re unclear, the case is a lot harder to argue – and poor signage has been a regular cause of complaint.

Operators have also relied on an ancient remedy called “distress damage feasant”, developed to aid people whose land was damaged by wandering livestock. If a cow strayed on to your estate in 15th century England, common law let you seize the animal and demand payment from the owner for any damage done to your crops.

But the application of this right to cars parked on private land isn’t clearcut. Only the courts can decide whether it’s relevant and judges have struggled to apply the concept. As former High Court judge Peter Quilliam commented, it would be preferable if a remedy came from Parliament rather than the courts.

Law courts in England and Wales are no longer required to interpret distress damage feasant since the ban on clamping and towing was implemented last year. Scotland had already banned wheel clamping in 1992, after an appeal court described the practice as tantamount to extortion and theft.

Challenging the operators

Lack of regulation here means it’s up to individuals to challenge private operators’ practices.

The AA’s Mark Stockdale says his organisation gets regular complaints from motorists who feel they’ve been unfairly stung. It’s been lobbying for the sector to be regulated and wants a single independent authority to deal with complaints about council and private carpark operations.

There are few options for challenging private operators’ fees. Some consumers have successfully taken clamping and towing cases to the Disputes Tribunal. But it’s an uncertain process involving uncertain law. Operators can also rely on the fact many people won’t want the hassle or the expense (it costs a minimum of $45 to lodge a tribunal claim) and will pay up instead.

Insistent payment demands may also scare off some people. These demands may look like official fines. But carpark operators have no legal authority to impose fines. They may be able to claim damages for breaches of their terms and conditions. However, the amount of any claim is limited to the “reasonable" expenses they’ve incurred.

What’s reasonable is moot. The amounts being charged often bear little relation to the cost of the parking services provided.

Major player Tournament Parking charges between $3 and $8 per hour for casual parking at its sites in Auckland and Wellington. But if you overstay, you face a $65 fee. Tournament can also add extra fees – which more than double the cost – if you don’t meet the payment deadline.

Another company, New Zealand Enforcement Services, sends “enforcement notice” reminder letters warning the recipient failure to pay by the stipulated date may incur a late payment penalty and “additional costs relating to court proceedings and debt recovery”.

New Zealand Enforcement Services is the trading name of Quantum Services NZ, owned by David van Dam. He worked for Wilson Parking from 2001 to 2005. He was successfully prosecuted by the Serious Fraud Office for defrauding his former employer.

Quantum Services offers “tailored carpark enforcement solutions” to landowners. It’s one of several companies granted access to the Motor Vehicle Register to trace vehicle owners and send payment reminder notices for parking breaches. Others include Tournament Parking, Wilson Parking, Care Park, Secure Parking, and NZ Wheel Clamping Company.

The latter has recently breached the conditions of its access to the register. These conditions require a notice to be put on the vehicle and a reasonable time provided for you to pay or appeal the fee before a reminder is sent. NZ Wheel Clamping had been issuing reminders without placing a notice on the vehicle. The New Zealand Transport Agency says the company has since agreed to discontinue the practice and has also notified the Privacy Commissioner of the breach.

Operators also run the risk of breaching the Fair Trading Act if they issue notices representing legal action as inevitable. Companies may be able to pursue court action to recover unpaid debts but it’s up to the court to decide whether to order payment. If the case goes to court, you have the right to challenge the company’s claim.

What can you do?

Until there’s a change in the law, what are your options?

  • If you’ve been clamped or towed unfairly, your only practical option is to pay the fee to get your vehicle back. The operator has you over a barrel. But if the carpark signage is unclear or the fees are excessive, you may be able to challenge the operator afterwards. If a towie or wheel clamper is using threatening behaviour, call the police.
  • If you’ve been charged an unreasonable fee for overstaying in a carpark or breaching other terms, you can write to the operator and offer to pay what you think is reasonable. But this isn’t a guarantee the operator will stop pursuing you: you’ll have to continue to dispute the fee.
  • Warnings that unpaid fees will be passed on to a debt-collection agency may or may not be followed through. But it’s an unfair position to be in and another reason why effective regulation is needed.

Our view

  • Along with the AA, we’ve been calling for regulation of private carpark operators. Voluntary self-regulation isn’t working and consumers are bearing the brunt. We think the UK model offers a practical solution to the problem.
  • If you’ve been clamped, towed or ticketed unfairly, let us know. We’re collecting evidence of private operators’ practices to take to the government to support our case for regulation.

Tournament tale

Tournament tale

Tournament tale

One of our members arrived late at night to a carpark booked online. But when she got there the carpark was locked and there was no way in.

Jennifer Stephen booked parking online at Tournament Parking’s Nelson St carpark in Auckland. Jennifer had booked parking from midnight as she was arriving in the city on a late-night flight and picking up a rental car at the airport.

She chose the Tournament carpark because it was near her accommodation. But when she arrived at the building, the roller doors were down and there was no way in. She had to drive around the city until she found somewhere else to park.

When she later contacted Tournament to ask for a refund, the company refused and said its website stated the roller doors closed at 10pm. The information was there – but not on the same page as the carpark rates which stated casual parking was available “24 hours, 7 days”. The website also accepted Jennifer’s midnight booking, leading her to believe she would be able to gain access at that hour. There was nothing on her booking confirmation that indicated otherwise.

When we contacted Tournament, the company reconsidered and agreed a refund was appropriate. It’s also made changes to its website to make the operating hours of the carpark clearer.

Jennifer isn’t the only person who’s contacted us with a complaint about unclear information provided by private carpark operators. Like Jennifer, other complainants have felt they’ve been treated unfairly by the operator and have been left with few options to pursue matters.

Member comments

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Bart T.
30 May 2019
Forgot to start ParkMate parking app....

I've recently changed from long term parking in a reserved park (park and walk away) to casual parking (park, walk away, oh crap! Start the app!). There are no signs on the parks to remind you pay, nor at the exits (or at least not the exit we use). Twice this month I've been fined for forgetting to start parking on the ParkMate app....while early bird parking is $17 the fine is $65. In the past there were physical barrier arms to ensure you had to pay before you could leave - so forgetting wasn't an problem, and your entry ticket would ensure you got the early bird rate! As Wilson Parking (of course) continues to remove barrier arms more and more people are getting ticketed for forgetting to start their parking's easy to do, let alone when you've spent the better part of a decade not needing to do this at all. Wilson Parking have my details from their Park Mate app (both registration plate and email address are recorded) but they make no effort to send a 'reminder' as other companies would if you miss a bill - they just instantly fine you, and threaten to tow your vehicle if you don't pay and park in the building again - because apparently this is what you agree to in the tiny fine print somewhere near the entrance when you drive in. Given that Wilson's actual 'loss' from me forgetting to park is just $17, and maybe $10 in administration costs (generously estimated at 20 minutes at the living wage rounded up to the nearest tenner) do they have any legal right charge to such a high 'fine' and make all of these threats? It all seems very unreasonable....especially when there is nowhere else to park as LITERALLY everything in the area (Boulcott St in Wellington) is Wilson Parking leaving me ZERO options for casual parking with anyone else... :-(

Marita B.
07 May 2018
Wilson's parking breach when payment machine is broken

hi, I parked at a Wilson's car park and went to pay and found the machine broken. There was no facility to pay by cash and the credit card payment system didn't work. There was only one machine. There was a sign saying the ,machine was broken but no direction on what to do. We didn't pay and returned to receive a $65 penalty fee (breach notice) on the car. Online there were photos of our car, and yet surely they knew the machine was broken!

We disputed the charge online and have received another email saying that we still have to pay as the terms and conditions say we have to show a valid ticket or not park there. So after we have parked, unloaded our things, locked the car and gone to pay the fee, they suggest that we have to leave the car park even though it was their fault we couldn't pay? If their machine was broken they couldn't have made money from anyone else either and the car park. We think it is reasonable to charge us the fee of what we owed if we had been able to pay there and then, $6. But it is unreasonable to charge us $65 when it was their fault that they didn't provide a working payment facility.

We have put in a second challenge offering to pay $6 as a reasonable fee but disputing the $65 charge. If they do not accept this, what do you suggest we do?

Consumer staff
08 May 2018
Re: Wilson's parking breach when payment machine is broken

Hi Marita,

We'd suggest paying the $6. If Wilson’s Parking doesn’t accept the payment, you can lodge a claim in the Disputes Tribunal.

Fonda - Consumer NZ staff

Jacinta G.
28 Feb 2017
Wilson's unfair parking charges

On Saturday afternoon I inadvertently parked in a Wilson's car park. I thought I was in the C4 Cafe car park which in fact is next door. It was not until one hour later after having coffee and both parks were quiet that I realised that I was in a Wilson's car park and I had an official looking parking breach notice on my car for $65. I consider that to be too much for one hour parking so I appealed and they sent a noreply email to say I had been unsuccessful and that I had to pay $65. I rang a very cheery young woman who kept reading me the rules and the signs. I said that $65 was excessive to charge and she said they had to maintain the parks. This park was on an unsealed property it had rocks underfoot as opposed to shingle.
Do I have any comeback now. I was told I have one more chance of appeal. What wording do you suggest I use?

Previous member
02 Mar 2017
Re: Wilson's unfair parking charges

Hi Jacinta,

Ask Wilson Parking to point out their signage — it should be obvious it was Wilson’s car park. Otherwise we’d suggest paying the fee, but making a complaint to the Commerce Commission that $65 is excessive and unfair:

You could write to Wilson Parking and offer to pay what you think is reasonable; however it may still pursue you.

Fonda - Consumer NZ staff

Warren S.
07 May 2016
car clamping

i parked in a customer/staff parking in Henderson today located at the rear of the business i was visiting and walked from the back around to the front entrance after being in the shop to collect my playstation in for repair i went back to my car and found it had been clamped they were not interested in my repair docket and the shop staff confirming my visit the clampers demanded $200 in cash before releasing my car I had to go to a cash machine and draw the money out. The shop did not want to know and said it was not them the police said it was nothing they could do How can i get my money back????

Previous member
10 May 2016
re: car clamping

Hi Warren,

I've been informed that one of our advisers has been in touch about this issue. If you do have any more questions, please feel free to give our advisers a bell on 0800 266 786 between 9:30 - 4:00, Monday to Friday. They're happy to help.

Kind regards,

Consumer NZ staff