Protection of Freedoms Act 2012 - false sense of security

Posted: 07/08/2012

The Protection of Freedoms Act 2012 received Royal Assent on 1 May 2012. While the provisions aimed at protecting civil liberties and vulnerable groups do not affect the property industry, there are four areas that practitioners should be aware of. Duncan Taylor highlights the key points to consider in this week’s issue of Estates Gazette:

Wheel clamping and parking charges

Sections 54 and 55 of the Act will be of prime concern to owners and managers of private land comprising parking facilities who, in the past, have used (or threatened to use) wheel clamping and towing to prevent unauthorised parking and abandonment of vehicles.

From 1 October 2012 it will be a criminal offence to immobilise, move or restrict the movement of a vehicle without "lawful authority". Clamping and towing is, therefore, effectively outlawed (except by police, local authorities, government agencies and bailiffs). The Act makes it clear that lawful authority cannot be conferred by getting the vehicle owner's consent. Parking notices warning that clamping and/or towing are in operation will not work after 1 October. Car park signage and terms and conditions will need to be amended. Property owners who outsource the management and running of their car parks should review their outsourcing agreements to ensure that their provisions are compatible with the new law. Provisions in car park leases, licences or other documents that permit clamping will not be effective.

The use of fixed barriers as a way of enforcing parking charges is permitted. The barrier must be in place when the vehicle is parked, but it need not be lowered. While costly and not always viable, the changes may result in an increase in the installation of such barriers in the run up to 1 October. Landlords and managing agents should check their leases to ensure that installation costs can be recovered through the service charge.

Purchasers of estates comprising car parking facilities will need to consider how car parks operate and make provision for changes needed to comply with the Act.

Although the Act has removed what was an effective method of policing parking, landowners will be pleased that it has conferred two other remedies in relation to vehicles left on their land:

• Section 56 of and Schedule 4 to the Act include detailed provisions for the keeper of a vehicle to be held liable for unpaid parking charges where the identity of the driver is not known, provided that a specified procedure is followed. Currently, parking charges can only be made against the driver of the vehicle.
• Section 55 allows regulations to be made under section 99 of the Road Traffic Regulation Act 1984. Such regulations will extend the powers of the police to remove vehicles from all areas of private land (not only roads, as is presently the case) where they are illegally, obstructively or dangerously parked or broken down.

Surveillance cameras

Part 2 of the Act obliges the secretary of state to establish a code of practice for surveillance camera systems. That code is to be enforced by a newly created surveillance camera commissioner. CCTV and automatic number plate recognition systems are already commonplace in business parks and shopping centres, so should private land owners be concerned? The short answer is no. This part of the Act need only be considered by a "relevant authority". Relevant authority, as defined in section 33(5) of the Act, presently covers public bodies such as local authorities and the police. Accordingly, the Act does not currently apply to privately owned cameras.

A word of caution though. During the drafting of the Act, there was discussion that Part 2 could be extended to include progressively more cameras. In this context it is interesting to note that section 33(5)(k) allows the secretary of state to expand the reach of the provisions by widening the definition of relevant authority to include "any person specified or described by the secretary of state" by statutory instrument.

Unfortunately, tenants of property owned by a relevant authority will need to consider the effect that code compliance may have on service charges (assuming that the landlord authority has the right to recover such costs under the terms of the lease). This is not an immediate concern, however, as the code must first be approved by a resolution of both houses of parliament.

Powers of entry

Chapter 1 of Part 3 of the Act seeks to control the use of disproportionate powers of entry. Landlords should fear not, however, as the measures are aimed at powers currently granted in primary and secondary legislation to the police, local authorities, trading standards officers or staff of other regulatory bodies. Re–entry provisions in commercial leases, including those where the landlord is a local authority, are not affected.

Repeals

Section 39(2) of the Act provides for a number of repeals, which are set out in Schedule 2. One that residential landlords should note is the repeal of section 8(2) of the Landlord and Tenant Act 1985 (the 1985 Act). That section gives a statutory right to a landlord to enter certain residential premises for the purposes of viewing their state and condition. It was felt that, as modern residential leases invariably contain a contractual right of entry (and as the provision applies only to tenancies subject to very low rent limits), the provision was no longer required.

The British Property Federation, however, has a different view. It argues that the provision is not redundant and estimates that there are some 18,000 to 24,000 tenancies where this power of entry would continue to operate.

Consequently, while the section is still to be repealed, the government indicated during the passage of the Act that it would introduce a saving provision, using order–making powers, to ensure that the power remains available in respect of existing tenancies. In the case of new tenancies, a power of entry must be provided in the tenancy agreement.

What next?

Although the Act has been passed, not all of its provisions are in force. The Protection of Freedoms Act 2012 (Commencement No 1) Order 2012 brought into force on 1 July 2012 the majority of the provisions relating to surveillance cameras and powers of entry, but secondary regulations still need to be made. The repeal of section 8(2) of the Landlord and Tenant Act 1985 also came into effect on that date, but a further commencement order will be necessary in relation to the parking and wheel clamping provisions. Accordingly, affected parties need to watch this space.

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