This is Dana Seetahal's take on the issue....
Impounding cars — under what power?
By Dana SeetahalI understand that vehicles are being wrecked on Ariapita Avenue and owners are being asked to pay a fee of $1,300 to recover their vehicles. Indeed, I read an article in one of the newspapers where the ebullient Mayor stated that the City Corporation had impounded some 33 vehicles and had collected $39,000 so far to have them released. Now this may seem like a case of serious law enforcement, especially in the face of a statement by the Minister last Wednesday that we don't enforce traffic laws.
If that were the case no one could complain.
The problem I have, however, is that up to now I have been unable to find the law that empowers the Corporation to act as it has done. One may say that ignorance of the law is no excuse but it is the duty of the Corporation to clarify what the law is, given that the Mayor was quoted as saying last week that he was going to have wrecked vehicles taken to a "secret place" and the owners would have to pay $5,000 to have them back. Now, I understand there is no secret place and the fee demanded is much less.
It is at least a good thing that no one carted off any vehicle to a secret place without the knowledge and consent of the owner. If this had happened it would have arguably been a case of theft. If this had happened and the owner was then asked to pay $5,000 for the release of the vehicle it would definitely have been a case of extortion.
We have been spared that threat but those of us who live/park in the Woodbrook area now have to deal with the reality of an expensive wrecking fee of $1,300, a sum that most people don't carry around in their pockets.
The Motor Vehicle and Road Traffic Act (MVrtA) at section 108 allows the police to remove a vehicle parked in breach of the traffic laws where the owner cannot be found or refuses to move it. A constable may take the vehicle to a place of "safe custody" usually by towing it. In order to have the vehicle released the owner must pay the sum of $300 in removal charges and $200 for custody of the vehicle: total $500. If not paid within 30 days the vehicle may then be sold by public auction.
Does the City Corporation have any additional or different power?
Upon enquiry at the City Corporation, I was told that it could impound a vehicle if it is creating a nuisance. There is an old law relating to nuisances under the Public Health Ordinance 1950. It allows local authorities to deal with nuisances on streets, among other places. These nuisances, however, must be "injurious to safety or health" and there is a process of notice to be served first. In rare instances if there is need for immediate action the head of the local authority may take urgent steps to abate a nuisance. However, the need for urgent action must be certified by the District Medical Officer. Clearly, therefore, the power of the Mayor and the Corporation to impound/tow a vehicle parked in a manner amounting to an obstruction is not to be found in this law.
The next law I checked was the Municipal Corporations Act (MCA) since Port of Spain, like San Fernando and Arima (to name a few), is a municipal corporation. At section 134 of that Act a council of such a corporation is given power to make byelaws to declare the manner and conditions under a vehicle must be used or driven in a street. This is, however, subject to section 110 of the MVRTA. That section provides that where there is conflict with the provisions of that Act and any other law relating to the control of vehicles and road traffic, that Act "shall prevail".
So even though the MCA says that a constable may seize, detain, remove and impound any animal or vehicle being used on any street in breach of the byelaws or Part VII of the MCA itself, dealing with streets, any law in this regard cannot override the MVRTA.
I have found nothing in the MCA that refers to parking illegally or obstruction through the use of vehicles. I have attempted to search for bye laws in this respect and have come up empty-handed. Now it may be that the Mayor might have passed bye-laws under section 134 relating to creating nuisances by inconsiderate parking and the like. It must be a well kept "secret". In any event any such bye-law cannot override the principal laws in the MVRTA.
The reason for this is that the MVRTA is an Act passed by Parliament after debate by the House of Representatives and the Senate and after the Bill has passed through discussion in Committee stage. Bye laws are not debated and not made by Parliament. They are subsidiary laws and may be challenged as illegal if they seek to override main legislation.
In summary then the MVRTA specifies that the "wrecking fee" is a total of $500. If the Mayor and the Corporation claim to be acting under some other law allowing them to charge $1,300 for the same act of illegal parking they must be acting illegally. Whenever there is a conflict between the MVRTA and any other law relating to control of vehicles and road traffic, the MVRTA prevails.
There should be no wrecking fee above $500 and I call on the Minister of Works and Transport to clarify the air if the Mayor does not, sooner than later.
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