Clamped drivers could be in line for refunds, after the Chief Justice ruled the Corporation of Hamilton does not have the power to clamp vehicles illegally parked in the city.

Chief Justice Ian Kawaley found that the 2007 Ordinance governing clamping was invalid because it had never been properly published, as required by law.

The effect of this failure, which was first highlighted by the Centre for Justice (CFJ), meant members of the public were never made aware of the scope of the wheel clamping policy or how it could affect them.

The Centre for Justice’s Managing Director, Venous Memari, welcomed today’s ruling.

And although the question of whether vehicle owners could recoup the $100 unclamping fee was not addressed by the court, a CFJ statement said: “Members of the public who have paid to have their vehicles unclamped should seek a refund directly from the Corporation in the first instance, failing which a claim to recover that money paid can be made in the Magistrates’ Court.

“Based upon its research, Centre for Justice found that the full text of the Ordinance was never properly published as required by the Corporation’s enabling legislation.

”The Chief Justice found that the effect of this failure was not only to deprive the public of the opportunity to apprise themselves of the scope of the Corporation’s planned wheel clamping policy, but also to understand how they might be adversely affected by that policy.

“Centre for Justice believed that substantive compliance with the publication requirement was needed given wheel clamping deprives a person of their property and hinders their ability to move about freely, in violation of constitutionally protected rights and freedoms. The Chief Justice agreed.”

Ms Memari added: “The decision of the Chief Justice is significant in that it makes clear that the Corporation’s powers are not limitless.

“It cannot take steps to regulate its property without regard to the rule of law, particularly where those steps adversely affect people.

“We are pleased that the Chief Justice found that the concerns Centre for Justice raised about the legality of the Corporation’s Wheel Clamping Policy were fully justified.”

A statement released by the Corporation of Hamilton this evening did not address the issue of compensation.

It stated: “It is abundantly clear from today’s ruling by the Chief Justice that Corporation and the Government need to be working in tandem.

“Consequently we do not wish to make any statements until we have had the opportunity to discuss with the Government how we will be moving forward.”

The initial court hearing before Chief Justice Kawaley was heard on October 22, but his judgment was released today.

Mr Kawaley said: “The 2007 and 2010 Ordinances were not validly made because they failed to comply with the lighter touch procedural requirements then in force.

“Alternatively they were rendered invalid by section 17(2) of the Municipalities Amendment Act 2013 which Act subjected the Corporation’s lawmaking powers to more rigorous central Government security.

“The concerns informally expressed by then Senior Magistrate Archibald Warner and formally raised by the Centre for Justice about the legality of the clamping scheme were fully justified.

“The 2014 Resolution, purportedly made under the Corporation’s general property-owning powers, was also invalidly made.

“In the course of the hearing I expressed concerns about the consequences which might flow from acceding to the arguments of the Attorney General and the Centre for Justice and finding in favour of invalidity or the instruments in question.

“Those concerns in any event potentially could be met were the Government to see fit to enact validating legislation along the lines of section 7 of the Municipalities Amendment and Validation Act 1195.

“Be that as it may, inconvenient consequences afford no answer to a valid complaint that a statutory authority has exceeded it power in a fundamental respect.”