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.
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.
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.
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.
- 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.
Report by Jessica Wilson.