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Distress damage feasant: to clamp or not clamp?

Media release – October 3, 2005

Distress damage feasant law – to clamp or not to clamp: NZ parking conference issue

How does a 17th century common law principle known as distress damage feasant extend through to the 20th century practice of wheel clamping vehicles illegally parked on private property?

Distress damage feasant is an old common law remedy which is a self help remedy available to an occupier of land. This issue will be raised at the New Zealand Parking Association conference which opens in Hamilton tomorrow.

The remedy gives a landowner the right to seize and retain someone else’s chattel (eg: an animal which has strayed or an unauthorised parked vehicle) in order to obtain compensation from the chattel owner for any ‘damages’ caused by that chattel.

How does wheel clamping fit in with accepted enforcement practices? Can wheel clamping be extended from use on private property into the public domain?

Enforcement measures used against illegal parkers will be raised by at the conference by Gordon Ward from the NZ wheel clamping company presenting a paper on the issue.

Parking association chairman Colin Waite said today the law in New Zealand relating to clamping is not straightforward.

The application of the old law of distress damage feasant to modern conditions presents many difficulties and it is suggested that clamping using these provisions raises questions of legality and lawfulness.

``In New Zealand there is almost no current legislation or regulations concerning the clamping of vehicles that would allow local authority enforcement staff to clamp offending vehicles on the roadside,’’ Mr Waite said.

``Is it time for legislation to be enacted to remedy this situation and wheel clamping be another legislated power of a parking enforcement officer?

``Towing as opposed to wheel clamping however is a much more established and less legally problematical remedy for dealing with unauthorised vehicles. Whether on the roadside or in a car park, the removal of the vehicle removes the problem.’’

Mr Waite said there are times when clamping certain vehicles may have a salutary and highly visible affect on certain offenders and should not be discounted off hand.

Legislation would need to be enacted and protocols put in place before any such action could even be considered or undertaken.

The conference will also showcase the best practices and the latest technologies in on-road parking controls and parking enforcement.

The annual meeting is the shop window for local authorities, car park operators, manufacturers and suppliers activities as parking becomes a more and more important issue across New Zealand.

Delegates attending will be representing over 50 local authorities and one international airport company who all carry out parking enforcement in New Zealand.

Mr Waite estimated well over a million parking fines were issued in New Zealand every year by local authorities.

The annual awards for parking excellence will be presented during the conference. The awards recognise contributions to the industry as well as acknowledging struggles that some parking wardens have in their cities.

Car-parking rates as one of the great curses of the 21st century. Waite said the problem was not confined to big cities and it regularly reared its head in smaller towns, with local councils debating over inconsiderate drivers parking illegally for hours in restricted areas.

Many larger city councils are actively pursuing initiatives to reduce car use, and thus traffic and parking congestion.


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