States Assembly | P.112-2018 - Research - Draft Motor Vehicles (Removal from Private Land) Jersey Law 201- 10 October

The official version of this document can be found via the PDF button.

The below content has been automatically generated from the original PDF and some formatting may have been lost, therefore it should not be relied upon to extract citations or propose amendments.

PDF version

STATES OF JERSEY

DRAFT MOTOR VEHICLES (REMOVAL FROM PRIVATE LAND) (JERSEY)

LAW 201-

Lodged au Greffe on 5th October 2018

by the Minister for Home Affairs

STATES GREFFE

2018 P.112

DRAFT MOTOR VEHICLES (REMOVAL FROM PRIVATE LAND) (JERSEY) LAW 201-

European Convention on Human Rights

In accordance with the provisions of Article 16 of the Human Rights (Jersey) Law 2000, the Minister for Home Affairs has made the following statement –

In the view of the Minister for Home Affairs, the provisions of the Draft Motor Vehicles (Removal from Private Land) (Jersey) Law 201- are compatible with the Convention Rights.

Signed: Connétable L. Norman of St. Clement

Minister for Home Affairs

Dated: 3rd October 2018

REPORT Introduction

Motor vehicles that have been parked or abandoned on private land without permission can be a source of great frustration for private landowners. These vehicles cause inconvenience for people parking at their homes, create costs for businesses, and place obstacles in the way of emergency services. However, at present, private landowners have few remedies to deal with the problem.

If a homeowner, for example, wants to stop someone from parking a car in front of their driveway, that person must pursue a civil action through the Royal Court. This is not a simple remedy. It has the potential to create significant costs for private landowners and does not offer immediate relief from the problem.

In some cases, private landowners have turned to wheel clamping to solve the problem. However, the legality of this practice is uncertain, and there are concerns about how it is enforced by wheel clamp operatives. The Minister for Home Affairs is, therefore, proposing to ban wheel clamping.

Private landowners do, nonetheless, require an effective and proportionate way of seeking relief from vehicles that are causing a persistent nuisance, a danger, or an obstruction on their land.

The Draft Motor Vehicles (Removal from Private Land) (Jersey) Law 201- is intended to provide a solution. The draft Law provides a statutory framework for the introduction, by Regulations, of a number of different processes by which private landowners will be able to manage vehicles that have been parked or abandoned on their land without permission to be there.

The draft Law provides a framework for the introduction of Regulations to –

Make vehicle immobilisation and interference on private land an unlawful practice.
Provide alternative mechanisms by which private landowners will be able to remove vehicles from their land when they are not authorised to be there, including:

- Where signage is displayed (or not displayed as the case may be).

- Where a vehicle is causing persistent nuisance.

- Where a vehicle is creating a hazard that has the potential to hinder emergency services.

Provide safeguards in respect of the removal and disposal of vehicles, and the conditions that must be satisfied before doing so.
Create a register of approved vehicle removal operators and the application process.

These processes will be brought forward under the Draft Motor Vehicles (Removal from Private Land) (Jersey) Regulations 201- if this Law is adopted by the States Assembly. The draft Regulations are attached as Appendix 2 to this report.

The draft Law also includes provision for the introduction of a system of civil penalties. This would allow private landowners to levy parking charges on the owners of vehicles that have been left on their land without permission. The introduction of a

system of civil penalties is not included in the draft Regulations which the Minister is planning to bring forward should the Law be adopted.

However, subject to consultation on the principle of a system of civil penalties and how they might work in practice, it is envisaged that additional Regulations could be brought forward in the future to introduce a system of civil penalties.

A detailed description of the provisions included in the draft Law are set out in section 3.

The draft Law does not affect the removal of motor vehicles from land in public ownership, which is covered by the provisions of the Road Traffic (Jersey) Law 1956. The draft legislation has been developed in consultation with the Department for Growth, Housing and Environment, which has confirmed it is satisfied with the proposals, based on their experience of dealing with the issue on public land.

Consultation has also taken place with the Comité des Connétable s and the Comité des Chefs de Police, given the interest that the Parishes have in this issue. Discussion with the Parishes has highlighted the difficulties that many private landowners experience in dealing with motor vehicles that have been abandoned on private land without permission (such as in pub car-parks). The introduction of legislation to deal with the problem has, therefore, been well-received.

The Minister is grateful for the comments and observations that have been received on the draft legislation so far. Further consultation will take place with interested parties regarding the draft Regulations before they are brought forward, which will help to ensure that the processes set out in the legislation are fair, proportionate and work in practice.

Background to the proposals

In October 2009, the States Assembly voted in favour of making the practice of wheel clamping on private land illegal unless authorised by law (P.119/2009). The Proposition, which was adopted as amended, was lodged by former Deputy P.V.F. Le Claire of St. Helier , and requested the Minister for Home Affairs to develop and bring forward draft legislation to give effect to this decision.

The Minister for Home Affairs at the time, former Senator B.I. Le Marquand, was supportive of the Proposition, having expressed the opinion that the practice of wheel clamping was unlawful since: "it constituted an interference with the rights of the owner or user of the vehicle concerned"[1].

Wheel clamping is the practice of immobilising a motor vehicle and thus preventing it from being moved. In its most common form, wheel clamping involves the attachment of a clamp to the wheel of a vehicle to penalise a person for parking on land without authorisation. A landowner may then demand a fee in return for removing the clamp and releasing the vehicle to its owner.

While there has been no definitive judgement by the Royal Court in respect of the legality of wheel clamping on private land, legal opinion suggests that it is an illegal practice in Jersey. This opinion is supported by the case of Gosselin v. Attorney General [1990 JLR102].

The case involved the conviction of a wheel clamp operator in the Magistrate's Court for an offence of tampering with a vehicle contrary to Article 29(2) of the Road Traffic (Jersey) Law 1956. Whilst the conviction was overturned on appeal in the Royal Court, the appeal was successful on the basis that the vehicle was not in a road

or public place provided for the parking of vehicles in accordance with the terms of Article 29 of the Law.

The Royal Court, therefore, took the view that a private car park was not covered by the terms of Article 29. However, the Court had already found that the accused had prima facie committed the offence of tampering contrary to Article 29, since he had touched the wheel either himself or with an immobilisation device.

Moreover, the act had not been done with lawful authority, because the wheel clamper operative was under no legal duty to resort to a "self-help" remedy such as wheel clamping.

When a person leaves a vehicle without permission on land occupied by another person, he/she will commit the tort of trespass. Trespass is a civil wrong that is actionable through the Court and the occupier could, as a result, be entitled to damages. Wheel clamping would, therefore, amount to a suggestion that a landowner may take the law into his/her own hands and demand damages from the trespasser without having pursued the legal remedy available through the Court2.

Legal precedent in Scotland has also established that wheel clamping is not lawful. In the case of Black v. Carmichael [1992] SCCR709, wheel clamping was ruled to be theft and extortion. The ruling was the result of a Common Law definition of theft' which, under Scott ish Law, does not require the intention to permanently deprive a person of their property, but it may be on a short-term basis instead. Whilst this has never been tested locally, the Jersey Customary Law definition of theft does not, as in Scotland, require the intention to permanently deprive a person of his/her property.

Accordingly, together with the Gosselin case, the Black v. Carmichael case would likely provide a persuasive argument for a Jersey Court to rule that wheel clamping is an unlawful practice.

The Minister for Home Affairs, therefore, believes that vehicle immobilisation is an unfair and disproportionate practice, which should be made unlawful where there is no legal authority to do so. This follows the example from England and Wales where the Protection of Freedoms Act 2012 criminalised certain wheel clamping activities on private land without lawful authority.

Andium Homes and the Ports of Jersey triennial Regulations

In order to provide private landowners with mechanisms to deal with unauthorised vehicles left on their land, it is the Minister's intention to provide private landowners with powers to remove vehicles that have been parked, abandoned or otherwise left without permission on their land.

There is precedent in respect of legislative provision for the removal of vehicles from private land through the Removal of Vehicles (Private Land) (Jersey) Regulations 2016.

When ownership of the States of Jersey social housing portfolio transferred to Andium Homes in July 2014, the powers that the former Housing Department had under the Road Traffic (Removal of Vehicles) (Jersey) Order 1963, which enables the removal of vehicles from public land, ceased in respect of all land owned, leased and managed by Andium Homes.

This was also the case in respect of land assets transferred to the Ports of Jersey when it was incorporated on 1st October 2015 for all land not covered by the Aerodromes (Jersey) Regulations 1965 and the Harbours (Jersey) Regulations 1962.

2 Response of H.M. Attorney General to Deputy M. Tadier of St. Brelade , 14th June 2016.

The 2016 Regulations give both Andium Homes and the Ports of Jersey powers to move or remove vehicles parked on their land that are causing or are likely to cause a security risk, danger, nuisance or obstruction, and to dispose of any such vehicle if it is not claimed by its owner. The triennial Regulations, which last for 3 years only, came into force on 21st June 2016 and will remain in force until 21st June 2019.

It was stated during the States debate on the 2016 Regulations that legislation would be developed in the intervening period to provide all private landowners with a legal mechanism to deal with vehicles left on their land without permission. This legislation would also encompass Andium Homes and the Ports of Jersey, in addition to all other private landowners in Jersey.

Accordingly, the Minister has lodged the Draft Motor Vehicles (Removal from Private Land) (Jersey) Law 201-.

Proposals

The draft Law provides the statutory framework by which the Minister for Home Affairs will bring forward subsequent Regulations to introduce various processes that enable the removal of motor vehicles from private land when they are not authorised to be there. The draft Law also includes Regulation-making powers to make vehicle immobilisation and interference an unlawful practice, and powers to introduce a system of civil penalties.

The draft Law will apply to "private land", which is defined as meaning any road, driveway, parking place, footway, or other place on land that is not land belonging to, or under the administration of, any public or parochial authority, which is already covered by the Road Traffic (Jersey) Law 1956.

The Regulation-making powers included in the draft Law cover the following matters:

Power to prohibit motor vehicle immobilization, interference or removal

Article 2 will enable the States to make Regulations prohibiting a private landowner from carrying out any action that might interfere or immobilise another person's vehicle or any part of it.

If the draft Law is adopted by the Assembly, the Minister will bring forward Regulations to make it an offence for a person, without lawful authority, to prevent or inhibit the removal of a vehicle that has been left on private land from being removed by the person entitled to remove it, including in circumstances where a person –

immobilises a vehicle by attaching to it, or to part of it, an immobilising device – typically a wheel clamp – or placing an immobilisation near a vehicle;
restricts the movement of a vehicle (for example, using another vehicle to prevent it from being driven away);
moves a vehicle (by towing it away) unless with lawful authority.

There will be circumstances where it will not be deemed an offence to prevent or inhibit a vehicle from being removed by the person entitled to remove it – for example, where the movement of a vehicle is restricted by the presence of a fixed barrier provided that the barrier was present when the vehicle was initially parked there.

Power to remove vehicles from private land

Article 3 will enable the States to make Regulations that permit the removal of motor vehicles from private land. Regulations will cover matters such as –

the circumstances under which a vehicle may be removed or must not be removed;
the requirements to be satisfied before a vehicle may be removed;
the requirements for the removal, storage, custody, recovery or disposal of a vehicle;
the persons who may remove vehicles from private land;
the circumstances when information may be released by the Inspector of Motor Traffic or a parochial authority regarding the registered keeper information of a vehicle;
the procedure for notifying a person before or after the removal of a vehicle;
the recovery of expenses reasonably incurred in the removal, storage, custody, recovery or disposal of a vehicle from private land.

Under the draft Regulations, it is proposed that different processes will apply depending on whether signage is displayed on the private land or not. In summary, the differences that would apply are as follows:

Where signage is displayed: a private landowner would be permitted to move or remove a vehicle that is not authorised to be on that land immediately. There is an implied understanding that the vehicle owner has read the signage and is aware that they are not authorised to park on the land.

This process would extend to all private landowners the process that applies to Andium Homes and Ports of Jersey to all private landowners currently.

Where signage is not displayed: a private landowner would not be permitted to move or remove a vehicle that is not authorised to be on that land until a specified period of time had passed. Only where a landowner had taken steps to notify a vehicle owner would they be permitted to remove a vehicle. There are 2 proposed exceptions –

where the vehicle owner is present, and only with the assistance of a Police Officer;
where a private landowner requires an immediate solution to the problem (such as where a vehicle is causing a security risk or obstruction to the emergency services), and only with authorisation from a Police Officer or parochial authority.

It is important to note that the removal of a vehicle from private land would not give a landowner immediate authority to dispose of a vehicle. It may, for example, be that a vehicle is claimed by its owner once it is removed. Only after a specified period of time has passed, and the landowner has taken steps to notify the owner, will they be able to dispose of a vehicle. The requirements of the proposed draft Regulations are set out in the flow diagram attached as Appendix 3 to this report.

Under Article 3, the draft Regulations will also include provision to deal with circumstances where a vehicle might be parked frequently on private land in a way that is considered by the landowner to constitute a persistent nuisance. This may, for example, happen when a person leaves their vehicle for a few minutes each day on a privately-owned estate in someone else's designated parking space, in order to drop off and pick up their child from a nearby school.

Here, a landowner requires a remedy to seek relief from vehicles that might have only been left on their land for short period of time – so removing the vehicle is not a practical solution – but on a recurrent basis such that the vehicle causes a persistent nuisance to the landowner.

In these circumstances, it is proposed that a private landowner will be able to make an application to the Magistrate's Court to seek relief from any vehicle that is causing a persistent nuisance. If the landowner was able to demonstrate to the satisfaction of the Court that a vehicle was causing such a nuisance, then the Magistrate would be permitted to make an order that –

imposes a charge on the owner of a vehicle;
requires the owner of a vehicle to desist from leaving their vehicle on the land.

As noted, the draft Regulations have been discussed with a number of interested parties already and have been well-received, subject to some minor amendments and clarification. However, during the lodging period for this draft Law, further consultation will take place to make sure that the proposals work in practice.

Charges for unauthorised parking on private land

Article 4 of the draft Law will enable the States, by Regulations, to make provision for the creation of a system whereby a private landowner, whether personally or through an agent, could impose a charge on the owner of a vehicle that has been parked on their land without permission.

This kind of charge would provide compensation for the damages a private landowner might incur as a result of the vehicle being left on their land – for example, where a person has left their vehicle in a supermarket car park for longer than a permitted period of time, thus preventing other people from using the parking space.

The Minister does not, at this juncture, propose to introduce such parking charges, and any system would need to be subject to public consultation. However, it is prudent to include provision in the draft Law so that legislation to introduce charges for parking on private land without permission could be brought forward at a later date should it be considered desirable. The draft Law makes provision for Regulations to prescribe the following matters –

the circumstances when a charge may or must not be recovered;
the maximum amount of any charge and discount that may be made for early payment;
the display of signage, and notice and evidential requirements;
the resolution of disputes and complaints in relation to the imposition of a charge;
the means to recover any unpaid charges.

The parking charges under Article 4 of the Law would be additional charges to those that a private landowner may require as a condition of a person being authorized to park on land (i.e. they are an excess charge).

Article 5 of the draft Law gives powers to the States to make provision for the keeping of a register of motor vehicle removal operators and to prohibit persons who are not registered as such from removing vehicles from private land.

The draft Regulations brought forward under this Article will specify requirements in relation to the process for applying to be a vehicle removal operator; the publication of a register of vehicle removal operators; the information a register must contain; and any fee that might be required as part of an application for registration.

In order to register as a removal operator, a person would need to satisfy the conditions specified by the Regulations. The requirement for a person to register as a

motor vehicle removal operator is being proposed to provide assurance that appropriate standards of conduct are adopted in the performance of this activity. The criteria could include, for example, conditions to ensure that an applicant –

has sufficiently secure premises to store any vehicle removed from private land.
possesses a vehicle that is suitable for the safe removal of a vehicle from private land
maintains adequate insurance against any loss or damage.

Financial and manpower implications

There are no resource implications associated with the adoption of the draft Law.

The processes for the removal of motor vehicles from private land will rely on private landowners using commercial removal operators in order to remove parked or abandoned vehicles from their land. As such, there will be cost for landowners involved with this process.

The costs connected with the removal, storage and disposal of vehicles are considered reasonable in order for private landowners to seek relief from vehicles that are parked or abandoned on their land without permission to be there.

In some cases, a private landowner may require the assistance of the Police or Parish Authorities in seeking the removal of a vehicle. There will be costs for these authorities involved in such cases, but it is envisaged that these can be covered within normal service provision, given the anticipated small number of cases where it will be necessary for authorities to be present.

Human Rights

The notes on the human rights aspects of the draft Law in Appendix 1 to this report have been prepared by the Law Officers' Department and are included for the information of States Members. They are not, and should not be taken as, legal advice.

APPENDIX 1 TO REPORT

Human Rights Notes on Draft Motor Vehicles (Removal from Private Land) (Jersey) Law 201-

Introduction

These notes have been prepared in relation to the Draft Motor Vehicles (Removal from Private Land) (Jersey) Law 201- (the "Law") by the Law Officers' Department, for the purpose of confirming that the provisions of the Law are compatible with the rights of the European Convention on Human Rights (the "ECHR").

Advice

As noted in the draft Law's Explanatory Note: "[The] Law enables Regulations to be made by the States to provide a process by which motor vehicles that are left on private land, when not authorized by the landowner to be there, may be removed.".
It should therefore be noted at the outset that any interference with ECHR rights that will arise from this Law, will only arise by virtue of the content of the Regulations which may be made under the Law. These Regulations may interfere with the right to the protection of property' under Article 1 of Protocol 1 of the ECHR, this being with respect to the owner of a motor vehicle and/or trailer which is parked on private land belonging to another, and which is being removed.
Therefore, at this stage, we need only review whether the powers provided by the Law are in principle, compatible with the ECHR (i.e. is a power to make Regulations with respect to the removal of a vehicle from private land capable of being exercised in a manner that is compliant with the ECHR?).
It is not necessary at this stage to address all the possible permutations for the exercise of this Regulation-making power. To do so would be speculative. Ultimately, it will be for the States to ensure that Regulations made under this Law are compliant in each instance, for fear of such Regulations being struck down for incompatibility under Article 4 of the Human Rights (Jersey) Law 2000.

Protection of property

The right to protection of property provided under Article 1 of Protocol 1 is as follows –

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.".

This right is subordinate however to the: "right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest []."

The right to protection of property extends to protect individuals from arbitrary interference by the state with their existing possessions. It nevertheless recognises the right of the state to control the use of, and even to expropriate, the property of individuals, where doing so is in the public

interest. There are various forms of interference under Article 1 of Protocol 1 that may occur, but of interest under this advice is the interference of the vehicle owner's peaceful enjoyment by deprivation of property constituting control of the use of property'3. This will occur most notably where the vehicle is removed, and costs are associated with its return to the vehicle

owner. It was noted in Beyler v Italy4 that for the state to interfere in this manner, it must be: (1) in accordance with the law; (2) be in the public interest; and (3) be proportionate to an aim pursued.

As long as the Regulation-making powers are created in accordance with the provisions of the Law, and the powers purportedly exercised under the Regulations are in accordance with those Regulations, the first element of the test under Beyler will be complied with. However, the likelihood of Regulations made under the Law interfering with the Article 1 Protocol 1 right cannot be understated, and so care must be taken when reviewing the Regulations against the last two Beyler elements.

Interference must be in the public interest

Article 1 of Protocol 1 provides that any interference must be in the general interest', whilst Beyler discusses the public interest'. No distinction has been drawn between references to public' and general' interest in ECHR case law, and where property rights are concerned, states have a considerable margin of appreciation in determining the existence of a problem of general public concern, and in implementing measures designed to meet it.
The general interest identified in this instance is ensuring the enjoyment of a private landowner, where the owner's enjoyment of such land is being disturbed by another's motor vehicle or trailer which is parked on the private land without consent (the "General Interest"). It can be noted that the Law and its Regulations will provide for a remedy for disputes between as few as 2 private individuals, and won't necessarily benefit the Public at large in each instance. However, the ECtHR has confirmed that there isn't a need for the Public to benefit in general from a measure designed to further a general interest. In James v UK5, it was noted that measures to, "enhance social justice within the community can properly be described as being in the public interest'.". The Law is therefore compliant with the public interest requirement.

Proportionality

Probably the most sensitive aspect of the Law and its Regulations is the third element, proportionality. As noted, for the purposes of this advice we needn't explore the degree to which the Regulation-making powers can be exercised, only needing to review whether the ability to remove a motor vehicle or trailer from private land is in principle, proportionate. However, because the vires under the Regulation-making powers is wide, and the potential for Regulations becoming disproportionate is great, I would recommend that further advice is sought before draft Regulations are lodged au Greffe, in order to advise on their compatibility with the ECHR.
With regard to proportionality, any interference with the peaceful enjoyment of possessions must strike a fair balance between the means employed in

3 Handyside v UK, App. No. 5493/72

4 App. No. 33202/96

5 (1986) 8 E.H.R.R. 123

furtherance of the general interest identified, and the protection of an individual's fundamental rights. This means such interference cannot create an "excessive burden"[2], but that is not to say that the availability of an alternative means of achieving an aim renders any contested legislation as unjustified, so long as the method chosen remains within the state's margin of appreciation [3], and is "appropriate"[4] to the aim to be achieved. What's more, the ECtHR noted in Oneryildiz v. Turkey [5] that the right enshrined in Article 1 of Protocol 1, and the real and effective exercise of that right, does not depend merely on the state's duty not to interfere, but –

"may require positive measures of protection. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which is inherent throughout the Convention. This obligation will inevitably arise, inter alia, where there is a direct link between the measures which an applicant may legitimately expect from the authorities and his enjoyment of his possessions.".

The General Interest in this case is an area of law which lends itself to positive measures of protection. Without the Law, landowners are left with no adequate legal remedy in instances of interference with a private individual's Article 1 Protocol 1 right. One can also imagine the measures that a landowner might go to in order to ensure that his rights are protected or continued, which could lead to disproportionate costs or illegal acts. The remedies provided under the Law are, therefore, in principle, proportionate. More needs to be said, however, about the exercise of the Regulation-making powers.

Regulations

As noted, the Regulation-making powers have scope for a proportionate, as well as a disproportionate, interference with the Article 1 Protocol 1 right, specifically with regard to vehicle owners. We can, however, note the provisions of the Law; for instance, Articles 3(2) and 4(2), which provide guidance as to what considerations will be contained within the Regulations, which will help ensure a fair and proportionate approach to balancing the interests of both parties to a dispute. For instance, we can expect that: the Regulation-making power under Article 3 of the Law will be exercised in a manner which is consistent with the common law requirements on valid notice, as laid down in Lord Denning MR's judgement, Thornton v Shoe Lane Parking Ltd [6], due to the notice requirements under Article 3(2); or that it will be a pre-condition for removal that there has been an actual contravention of legislation, rather than the reasonable belief by a parking attendant that there has been one, as is the case under the Road Traffic Regulation Act 1984 s.99(1)(a)[7].

Despite the guiding considerations provided under the Law, it is still advisable that any Regulations are provided to the Law Officers' Department for review in each instance, to ensure the proportionality test is met.

Conclusion

On the basis that the Law has been drafted further to the General Interest, and that the principal remedies that can be provided for by way of Regulations are proportionate, the Law can be confirmed as being ECHR compliant.

APPENDIX 2 TO REPORT

(Note: Page 4 of the draft Regulations is a blank page set within the legislation template and is therefore not reproduced here.)

APPENDIX 3 TO REPORT Process for the removal of vehicles from private land

Explanatory Note

This Law enables Regulations to be made by the States to provide a process by which motor vehicles that are left on private land, when not authorized by the land owner to be there, may be removed.

Article 1 provides definitions of terms used in this Law.

Article 2 gives power to the States make Regulations to prohibit the interference or removal of a motor vehicle on private land for any purpose, by any means, by any person or in any circumstance specified in the Regulations. By Article 2(2) the States may also prohibit the use of an immobilization device on a motor vehicle left on private land. An "immobilization device" is defined as a device or appliance designed or adapted for the purpose of preventing a motor vehicle from being driven or otherwise put in motion.

Article 3 gives power to the States to make Regulations to permit the removal of motor vehicles from private land.

Article 4 gives power to the States to make Regulations to permit an owner of private land to impose a parking charge, or an additional or excess charge, upon a motor vehicle owner in respect of a motor vehicle that is left on that owner's land.

Article 5 gives power to the States to make provision for the keeping of a register of motor vehicle removal operators and to prohibit persons who are not so registered from removing vehicles from private land.

Article 6 permits Rules of Court under Article 29 of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949 and under Article 13 of the Royal Court (Jersey) Law 1948 to include powers to make Rules regulating practice and procedure for applications and appeals under this Law.

Article 7 enables Regulations made under this Law to make different provision for different cases and contain such incidental, supplementary, transitional, transitory, consequential or savings provisions as appear to the States to be necessary or expedient and create offences and specify penalties for such offences, not exceeding a level 3 fine on the standard scale.

Article 8 makes provision as to other persons who would be guilty of an offence committed by a body corporate, limited liability partnership or separate limited partnership.

Article 9 provides that where a person charged with an offence under this Law accepts the decision of a Centenier having jurisdiction in the matter, the Centenier may impose a fine of an amount not exceeding level 1 on the standard scale. A fine imposed by a Centenier is paid for the benefit of the parish in which the offence was committed.

Article 10 limits the liability in damages for acts done in the performance or purported performance of any power or duty conferred by or under this Law except where the act was done in bad faith or would prevent an award of damages made in respect of an act on the ground that the act was unlawful as a result of Article 7(1) of the Human Rights (Jersey) Law 2000.

Article 11 makes a consequential amendment to the Road Traffic (Jersey) Law 1956.

Article 12 gives the title of this Law and provides for it to come into force 7 days after it is registered.

Under the Criminal Justice (Standard Scale of Fines) (Jersey) Law 1993, a fine of level 1 is £200, a fine of level 2 is £1,000 and a fine of level 3 is £10,000.

Law 201- Arrangement

DRAFT MOTOR VEHICLES (REMOVAL FROM PRIVATE LAND) (JERSEY) LAW 201-

Arrangement

Article

1 Interpretation .................................................................................................37 2 Power to prohibit motor vehicle immobilization, interference or

Law 201- Article 1

DRAFT MOTOR VEHICLES (REMOVAL FROM PRIVATE LAND) (JERSEY) LAW 201-

A LAW to permit the removal of motor vehicles from private land and connected matters.

Adopted by the States [date to be inserted] Sanctioned by Order of Her Majesty in Council [date to be inserted] Registered by the Royal Court [date to be inserted]

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

1 Interpretation

In this Law, unless the context otherwise requires –

"Airport Director" means the person appointed as such under Article 2 of the Aerodromes (Administration) (Jersey) Law 19521;

"Harbour Master" means the person who is appointed as such under Article 2 of the Harbours (Administration) (Jersey) Law 19612;

"Inspector of Motor Traffic" means the Inspector of Motor Traffic appointed under Article 2 of the Motor Traffic (Jersey) Law 19353;

"land owner" means the person for the time being having the enjoyment of that land, either as owner or usufructuary owner or in the exercise of rights of dower, franc veuvage, seignorialty or otherwise;

"Minister" means the Minister for Home Affairs;

"motor vehicle" has the same meaning as in Article 2 of the Road Traffic (Jersey) Law 19564;

"motor vehicle owner" means the registered owner, driver or other person in control or in charge of that motor vehicle and, in relation to a motor vehicle that is the subject of a hiring agreement or hire-purchase agreement, includes the person in possession of that motor vehicle under that agreement;

"parking place" means a place allocated for the parking of a motor vehicle or a motor vehicle of any class or description;

Article 2 Law 201-

"private land" means any road, driveway, parking place, footway or other place that is not land belonging to the public of Jersey or under the administration of any parochial authority;

"registered owner", in relation to a motor vehicle, means the person for the time being entered in the register of motor vehicles described in Article 3 of the Motor Vehicle Registration (Jersey) Law 19935 as the owner of that vehicle;

"trailer" has the same meaning as in Article 1(1) of the Road Traffic (Jersey) Law 19566.

In this Law, a reference to the removal of a motor vehicle from private land includes the removal of a motor vehicle or a trailer from one position to another on private land and the removal of any load carried by a motor vehicle or trailer.
The States may by Regulations amend paragraph (1).

2 Power to prohibit motor vehicle immobilization, interference or removal

The States may by Regulations prohibit the interference or removal of a motor vehicle on private land for any purpose, by any means, by any person or in any circumstance specified in the Regulations.
The States may by Regulations also prohibit the attachment or other use of an immobilization device on a motor vehicle left on private land.
In this Article "immobilization device" means a device or appliance designed or adapted for the purpose of preventing a motor vehicle from being driven or otherwise put in motion.

3 Power to remove vehicles from private land

The States may by Regulations make such provision as may appear to the States to be necessary or expedient to permit the removal of motor vehicles from private land.
Regulations made under paragraph (1) may include provision for any of the following –

the circumstances in which a motor vehicle may be removed or must not be removed;
requirements to be satisfied before a motor vehicle may be removed;
requirements for the removal, storage, custody, recovery or disposal of a motor vehicle removed;
the persons or classes of persons who may remove motor vehicles from private land;
the circumstances in which the Inspector of Motor Traffic or a parochial authority must or may provide details of a registered keeper of a motor vehicle to a person specified in the Regulations or in circumstances specified in the Regulations;

Law 201- Article 4

the procedure for notifying a person before or after the removal of a motor vehicle of the removal and of its storage, disposal or means of recovery of it;
the recovery of expenses reasonably incurred in the removal, storage, custody, recovery or disposal of a motor vehicle removed from private land;
the resolution of disputes or complaints in connection with the removal, storage, custody, recovery or disposal of a motor vehicle;
any other provision connected to the exercise of the power under paragraph (1) or this paragraph.

In this Article a reference to disposal of a motor vehicle or trailer includes the sale, transfer or destruction of a motor vehicle or any load carried by the motor vehicle or trailer.

4 Parking charges for unauthorized parking on private land

The States may by Regulations make provision enabling a land owner, whether personally or through an agent, to impose a parking charge, or an additional or excess parking charge, upon a motor vehicle owner in respect of a motor vehicle or trailer that is left on that land owner's land.
Regulations under this Article may provide for any of the following –

the maximum amount of parking charges, the discounting of a parking charge for early payment, any additional parking charge for late payment or any excess parking charge, that may imposed;
the circumstances when a parking charge described in sub- paragraph (a) may, or must not, be recovered, including any requirement for a land owner to give notice that a parking charge is imposed when a motor vehicle or trailer is left on land specified in the notice;
the persons who may impose a parking charge and the persons from whom a parking charge may, or must not, be recovered;
the circumstances in which –

the Inspector of Motor Traffic or a parochial authority must or may provide details of a registered keeper of a motor vehicle, or
the motor vehicle owner must or may provide details of any person to whom he or she has hired or lent a motor vehicle to a person specified in the Regulations or in circumstances specified in the Regulations;

the conditions that must be satisfied before a person may impose or recover a parking charge including –

the contents of any notice to be displayed or served in connection with a parking charge,
any evidence that may or must be produced in connection with a parking charge, and

Article 5 Law 201-

(ii) the means of bringing any notice to the attention of any motor vehicle owner;

the resolution of disputes or complaints in connection with the imposition or recovery of a parking charge;
the means of recovery of an unpaid parking charge or an additional or excess parking charge;
such other matters as the States consider to be necessary or expedient for the purposes of this Regulation.

5 Register of motor vehicle removal operators

The States may by Regulations provide for the establishment and maintenance of a register of motor vehicle removal operators.
Regulations made under paragraph (1) may include provision for such matters as the States consider to be necessary or expedient for the purposes of the establishment and maintenance of such a register, including any of the following –

the person who must maintain the register;
the information that must be included in the register;
the criteria for registration;
fees for applications for registration, including any refund of fees;
the grounds for accepting or refusing applications for registration;
the attachment of conditions to the registration of a person;
the processes for making or granting applications for registration, or for suspending or cancelling a person's registration;
the process for appealing against decisions made in respect of the granting of, or the refusal to grant, applications for registration, the imposition of any conditions, or the suspension or the cancellation of a registration;
the duration or renewal of a registration;
the giving of any notice in connection with a registration;
the publication of the register or any part of it;
restrictions or prohibitions on operating as a motor vehicle removal operator without being registered.

Regulations may permit or require the Minister to –

publish the particulars that must be contained in an application for registration as a vehicle removal operator and any information that must accompany such application;
prescribe the amount of any fee payable under the Regulations; or
publish guidance or codes of practice to apply in relation to vehicle removal operators.

In this Article "publish" means publish in a manner that is likely to bring it to the attention of those affected.

Law 201- Article 6

6 Rules of Court

The powers to make Rules of Court under Article 29 of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 19497, and under Article 13 of the Royal Court (Jersey) Law 19488, includes powers to make Rules regulating the practice and procedure for applications and appeals under this Law.

7 General provisions as to Regulations

Regulations made under this Law may –

make different provision for different cases and contain such incidental, supplementary, transitional, transitory, consequential or savings provisions as appear to the States to be necessary or expedient; and
create offences, and specify penalties for such offences not exceeding a level 3 fine on the standard scale.

8 General provisions as to offences

Where an offence under Regulations made under this Law, committed by a body corporate, limited liability partnership or separate limited partnership, is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of –

a person who is a partner of the partnership, or director, manager, secretary or other similar officer of the company; or
any person purporting to act in any such capacity,

the person is guilty of the offence and liable in the same manner as the partnership or body corporate to the penalty provided for that offence.

Where the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to acts and defaults of a member in connection with his or her functions of management as if the member were a director of the body corporate.

9 Power of Centenier to impose penalty

Where a person charged with an offence under this Law accepts the decision of a Centenier having jurisdiction in the matter, the Centenier may impose a fine of an amount not exceeding level 1 on the standard scale.
A fine imposed under paragraph (1) is to be paid for the benefit of the parish in which the offence was committed.

10 Limitation of liability

None of the following is liable in damages for any act done in the performance or purported performance of any power or duty conferred by or under this Law –

a police officer;

Draft Motor Vehicles (Removal from Private Land) (Jersey) Article 11 Law 201-

a parochial authority;
the Minister;
any States employee who is, or is acting as, an officer, employee or agent of the States or of the Minister or performing any function on behalf of the States or of the Minister;
the Harbour Master or any person who is, or is acting as, an officer, employee, or agent of the Harbour Master or performing any function on behalf of the Harbour Master;
the Airport Director or any person who is, or is acting as, an officer, employee, or agent of the Harbour Master or performing any function on behalf of the Harbour Master.

Paragraph (1) does not apply –

if it is shown that the act was done in bad faith; nor
so as to prevent an award of damages made in respect of an act on the ground that the act was unlawful as a result of Article 7(1) of the Human Rights (Jersey) Law 20009.

11 Road Traffic (Jersey) Law 1956 amended

In Article 1(1) of the Road Traffic (Jersey) Law 195610, for the definition "road" there shall be substituted the following definition –

"road' means any public road, any other road to which the public has access, any of the roads on the Rue des Près Trading Estate, any bridge over which a road passes and any sea beach;".

12 Citation and commencement

This Law may be cited as the Motor Vehicles (Removal from Private Land) (Jersey) Law 201- and comes into force 7 days after it is registered.

Law 201- Endnotes

1 chapter 03.035 2 chapter 19.060 3 chapter 25.200 4 chapter 25.550 5 chapter 25.350 6 chapter 25.550 7 chapter 07.595 8 chapter 07.770 9 chapter 15.350 10 chapter 25.550