Trespass committed?

[jampot]

Hi all,

I'm having a long, drawn out discussion regarding the validity of me being clamped recently. I think I even posted on this forum, but the thread didn't elicit many responses.

I've done a LOT of background reading, in an attempt to challenge what has happened, and the brief circumstances are below:

1) I live on a residential street on a new housing development
2) To prevent the local students from using the area as an overspill from the Uni car park, the landowner (Bovis Homes) has authorised a national Clamping Company (PCM (UK) Ltd) to operate in the area
3) The roads of the development form part of the public highway. They are policed by traffic police, and it is a huge area, not just covering residential, but also some big offices and distribution warehouses. This isn't just a single 'private' dead-end road.
4) It is impossible, therefore, to drive up within probably a mile of my house without entering this clamping zone.

Residents were issued with permits (I have 3 of the damn things) and told to display them. Signs were erected:



which state that:

1) unauthorised parking may result in your vehicle being immobilised
2) parking without permission may result in your vehicle being immobilised
3) permits must be clearly displayed in windscreen at all times

What it does NOT state, is that vehicles not displaying a permit will be immobilised.

So, what I'm trying to deduce is, I may agree that failure to display a valid permit is a potential breach of contract between myself and the landowner (but not necessarily PCM themselves) but I am NOT convinced that failure to display a permit automatically makes me a trespasser, revokes my authorisation and permission, and renders my vehicle liable to being immobilised.

My car was parked in an otherwise deserted road, directly outside my own house. The only other vehicle within 100 yards in any direction was an electrician's (marked) van which was displaying the permit I normally keep in my car. Within 10 minutes of it being left there, it had been clamped and the clampers had retreated to their own van, so they MUST have begun clamping pretty much as soon as I closed my own front door.

There is nothing written on the permit itself which gives any instruction, and further - the permit is simply a square of red cardboard with PCM's stamp on it, and a number embossed on. There is no means to affix it to a windscreen, and no viable method for doing so, short of getting out some lengths of sticky tape and making a mess of my screen.

Obviously I want my money back, and the clampers have denied my appeal (as I thought they might). For a number of reasons they can't argue ANYTHING other than the fact that I was 'trespassing' but I fail to see how I can be trespassing on the public highway, outside my own house, for which I have to have an absolute right of access.

I have contacted the landowners themselves, and heard very little in response (just an acknowledgement and a promise to look into it, 2 weeks ago) and PCM acknowledge that I am, indeed, a permit holder.

The wording of the signs is what I'm most interested in with this thread. Despite what they IMPLY, it is NOT clearly stated that failure to display a permit is, in itself, grounds for the vehicle to be immobilised, nor that failure to display a permit revokes any authorisation or permission. I feel they have a duty of care to ONLY clamp non-authorised vehicles, and clearly mine IS.

I'd appreciate any comments on this.

[Sidewinder]

An appeal will serve no purpose and I can't see them refunding you for anything short of action on your part through the Courts.

The subject of trespass leads them into sticky territory as it involves entering the landowner's property without permission (you have permission, even if you weren't displaying proof of that permission it doesn't mean that the permission wasn't there) Similarly, the normal action on the part of the landowner has to be to request that trespassers leave his land, and only if they refuse may he expect reasonable compensation for any loss incurred as a result of the trespass. Is the clamp removal fee fair damages? I don't think so. Should they not issue a warning that future breaches will lead to a clamp being applied?

As you point out, much of what they rely on in the sign is only implied without being actually stated. Terms of parking Without permission - permission from whom? You agree to Your vehicle being Removed - It's not MY vehicle! Unauthorised Parking - Unauthorised by whom? Permits must be clearly displayed - Fishing permits? Firearms permits?

[jampot]

Yeah, they refused the appeal, on the grounds that I am supposed to display a permit. But that's not what their signs say!

Arthur v Anker showed that you can willingly accept the risk of being clamped IF YOU ARE TRESPASSING and that paying a release fee is 'reasonable'. Whilst £120 seems a lot, it is borderline 'reasonable' - however, their documentation refers to it as a 'fixed penalty charge', a 'penalty charge' and a 'penalty' and their letter politely describes its level as a 'deterrent', so if that isn't a penalty charge, I don't frankly know what is...

Methinks they've got their contract and their tort (trespass) mixed up a bit - they are claiming for breach of contract, but alleging a tort.

As I see it, I have a prior contract to park there. Their notice is merely a 'warning', and not a fresh contract in itself. I am NOT willingly agreeing to being clamped, as I *am* authorised.

It's an interesting one, though. They won't listen, and I may need to test it in court.