The grey area around the operation of private clamping is leading to continuing confusion among motorists, writes SHANE O'DONOGHUE
PARISHIONERS OF Clane in Co Kildare have been struggling of late with maintaining any levels of Christian charity for the private clampers operating in their town, especially on Sunday mornings.
Massgoers who, until recently, have been using a private car park adjacent to the church while attending Sunday mass, have found that, despite it being a relatively quiet business trading day for the town, the company responsible for operating the grounds has taken a pro-active approach to enforcing parking regulations. The end result has been a collection of irate massgoers and their immobilised cars.
Marian Mahoney was one of the unfortunate drivers to have their car clamped while at mass. "I was late so I pulled into the car park beside the church, where there are a few shops. There is disc parking during the week and I knew that, but I didn't think there would be disc parking on a Sunday. When I was coming out, I heard this lady shouting over at the clamper: 'You can't clamp that car.' I looked over and they were clamping my car."
The problem for Mahoney was made worse by the fact the clamping personnel refused to accept either Visa or Laser payment and when she withdrew €100 from a cash machine, she was told that he didn't have any change.
She wrote a letter of complaint to NCPS, the company licensed to clamp in the private car park, and received a reply that refused to offer any refund, stating that the company was within its rights.
Signs in the car park do indicate that a "pay and display" scheme is in operation and that anyone not displaying a valid ticket risks having their vehicle clamped.
However, her husband pointed out that the hours of operation - which are around the clock - are only posted on the actual ticket machine and that it's "in bad taste" to clamp cars belonging to people while they are at mass.
The Mahoneys understand that NCPS - and the land owner that contracted them to carry out the enforcement - seem to be within their rights. NCPS were contacted on several occasions for a response, but at the time of going to print they had failed to offer a reply.
While few motorists will have issue with the principles of a system that keeps thoroughfares clear of parked cars and gives customers priority over parking spaces, there is a fear, particularly among the massgoers of Clane, that enforcement is sometimes being driven by the potential for revenue generation, rather than in the interest of keeping traffic flowing.
The Clane parish office is aware of the issue, but it does not have the powers to intervene, though it does encourage its parishioners to make use of the church's own car park and has issued warnings about clamping in its recent weekly mass leaflets.
"It's always been a pay car park," Damian McCaffrey told The Irish Times, "but they've actually started clamping over the last couple of weeks during the masses on Sunday, which is absolutely ludicrous. This is dreadful."
Despite the ill feeling, most drivers will pay the fines, but while wheel clamping in a public place is legislated for, the legality of preventing a motorist from removing their car from private property until a fine is paid is not as clear cut as it perhaps should be.
Colm Daly, a solicitor in the Northside Community Law Centre, says it is a very grey area. "The difficulty with these situations is that you have to first of all try to establish what the relationship is between the parties, whether there is some sort of contract or whether it is more of a relationship of trespass. Then flowing from that will be the duties and responsibilities and implications of each, which can vary somewhat," he explains.
"A situation where, for example, it might be a private housing estate beside a railway station and the common land is owned by a management company and you park on the private common areas and get a train into town, you're essentially a trespasser. However, while you are committing a trespass, the management company might also be committing a trespass against your personal property if they were to interfere with it by clamping it.
"Two wrongs certainly don't make a right in those situations and then having to pay to be able to remove your car would be questionable as to how legal that particular sort of action may be," he said.
Although a court may well rule in favour of the motorist in a test case, the potential costs involved could far outweigh the fine, which is likely to put off most claimants.
Daly does acknowledge that, if the case was brought to the District Court and it ruled in favour of the car owner, the court also has the authority to compensate for inconvenience, as well as ordering the fine to be refunded.
Until legislation - or at least a code of practice for the industry - is put in place, it is likely to remain a grey area.
Dermott Jewell, chief executive of the Consumer Association of Ireland, believes that regulation of clamping on private land should be put in place before it gets out of control.
"To be pragmatic and to be realistic and to protect ourselves from bad business, we should bring in some form of regulation," he said.