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TofuMan

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Everything posted by TofuMan

  1. When dealing with State Agencies I record ALL telephone conversations, I request as far as possible all communications in writing and I make copies of any documents I have to send and send them special delivery. I tell everyone to do the same - we all should. I have found State Agencies are riddled with cowardly liars who will do or say anything to avoid responsibility for a failure. Obviously the culture inside these agencies is all about blaming each other - so no one wants to deal with a problem when you bring it to their attention.
  2. Yes, I am not surprised the public are confused and the DVLA should not get to blame us for not understanding. They FAIL in their duty of care to properly advise the public. I think that this should be in driving test theory, explicit in Highway Code, and when applying to SORN your car there should be access to far clearer information than currently exists... (better than a vague statement about your drive or garage). However - back to my case, under VERA there is no 'Highway' it is only by inference that 'road' may be understood to mean 'highway' and therefore encompass the fence
  3. Yes - Prima Facie - meaning [from Latin, On the first appearance.] A fact presumed to be true unless it is disproved. In definitions of 'road', people must have open access to use it as a road - they should not have had to overcome an obstacle such as a fence... I suppose some legal brain thought this may be a defence in that case. Of course, the court viewed 'at first appearance' it was obviously the case that crash barriers are intended to provide safety for drivers rather than act as a fence to create boundary of some kind - but the matter still benefited from their further invest
  4. Oh yes I did read that - thanks. Useful link for others too perhaps. I'll read it through again. There was a reason why I felt it was't applicable to me, I think because this land was not deliberately being put to the purpose of parking... so they were just deliberating whether the edge of the road was the barrier or the neighbouring boundaries... in determining if the offence was applicable in that case. I probably made some notes on it too. I'll be back later this evening perhaps
  5. Yes. I think in most instances a Court would agree with that, where there is parking on the 'road' itself... where for example the carriageway surface has been painted with bays. (Despite the Lords saying once you mark out a bay that stops being a road! That specific point needs testing in Court) That is the reason I parked where I did - I considered the parking along the carriageway itself to be 'public road'. I think that this might be an erroneous approach where dealing with a piece of land that was constructed specifically for parking. Because then the land in question was create
  6. Thank you, Silverfox. I think we both appreciate that many people now and in the years to come, will visit this site in a rather desperate need for help and advice. The last thing folks need is to see people simply bickering and getting personal. I think we are both mainly concerned to get to the truth and how the law should function rather than 'win' an argument. For my part I want to try and leave behind a thread that will hopefully help a few people who are struggling to deal with the DVLA in this particular situation - and Raykay's challenges are actually helpful in that regard ... h
  7. Yes they should. If I was wrong I was going to have to pay THOUSANDS of pounds (backdated car tax, costs, victim surcharge and storage fees of £21 per day from September to April)... so it was not something I treated lightly!! You are right to caution readers - such situations are unusual - I am not telling anyone 'how to beat the DVLA'. I am advising only of what the relevant law in my case was - how the points of law were argued and how my case tested a legal precedent successfully. Everyone must weigh up the risk they are taking and decide based on all the facts and the law in questi
  8. I came home from work today to find my car had been returned from the pound... they even kindly placed it back in exactly the same parking bay! So far, not a single apologetic word. I guess I'll have to make sure they feel very sorry indeed.
  9. Disgraceful arrogance!! Factually incorrect too, as Parliament decides - point that out next time! Sadly its a very common attitude among the Govt Agencies. They are full of nasty little people feeding off the crumbs of power falling from higher tables. It is a shame you did not record that statement. You can you know - it's not illegal (I don't want people to post on that - I know for a fact as my bro was a fraud investigator). Public interest, investigation of potentially unlawful activities, maybe you have terrible memory and want a 'word perfect' record of your conversation - it is
  10. DVLA/NSL may have thought this was how to look at it... but a Court decided it wasn't. DVLA decided not to appeal against losing my case... if they are so sure of the law, why not fight on? I understand your point though - the term 'highway' is considered by many people to be a 'catch all', especially when people see the 'any public place' part (which shouldn't apply in Section 29 VERA cases). Unfortunately, after 9 months of reading forums and reading legislation it seems many people can't tell the difference between different terms and the limits to where they apply... cer
  11. Yes I think I may have come across that too in the research I did. The general view on this seems to be its boundary to boundary as you say - derived from Section 192 of RTA rather than VERA's own definition. However, things can theoretically exist between the two edges that may not form part of the road that are NOT highway In the case of the JCB (or whatever it was) that was parked up over the crash barrier they assumed that land beyond it was not road because no one drove along it and the crash barrier formed the extent of the road... However, while I think it was rather extreme
  12. How does it go..?? 'To err is human but...' to really mess up you have to employ mindless dogmatic cowards. Something like that
  13. Extract of my 'Skeleton Argument' relating to 'Public Road vs 'Highway' used in Southampton Magistrates Court: Case 1400515280 D A Eadie v DVLA ------------------------ 1. I have committed no offence under Section 29 of the Vehicle Excise and Registration Act 1994, nor any other part of that Act because for the period in question the vehicle was subject to a Statutory Off Road Notification and was not used or kept on ‘public road’. 2. Consequently the DVLA’s action of clamping and impounding my car was unlawful and their prosecution of me is also unlawful. The Issue in this Case
  14. Yes it was important to focus on that precedent because it dealt very specifically with the question at hand; Is something that LOOKS like a car park, is USED as a car park and was described by the council 30 years ago as somewhere the residents should PARK THEIR CARS, actually a car park... if so then it cannot be a road. But Clarke vs Kato also describe the 4 tests... does it lead from one place to another, have defined edges, etc... You have to remember I was being prosecuted under VERA. VERA only has 'Road' and 'Public Road'. It doesn't use 'Highway' once in the whole act and in
  15. Correct - Clark vs Kato is not a guaranteed 'get out of jail' ticket for everyone... I am ONLY commenting on MY OWN case so others can understand how and why I was successful in defending against the prosecution. I am not very interested in playing out hypothetical untested interpretations. I do not think these are very helpful to people visiting these forums. I have spent 9 months reading the forums before joining and posting so I have seen and read a lot of guff. Facts and experience would be valuable over opinion really. I am only trying to show what happened in my case in the REAL WOR
  16. That is correct. Magistrates' Court cannot set a legal precedent. However Magistrates can be shown the outcomes of similar case at another Magistrates' Court and must consider them, but those outcomes are not binding. The Lords did bring up the sticky question of whether parking 'on the road' could be seen as separate to the road or not and they commented it presented an issue in regard to the ability to charge for parking if it was the road... as you can park there with Road Tax... I spent no time looking at that as it was not relevant and I don't think they made a clear statment on th
  17. BUT FIRST OF ALL... don't you think you should be CERTAIN it does not belong to a resident? If they are a resident the legal issues would be totally different. I would suggest rather than asking here, that if you work for a Housing Association you speak with you legal team. Check Schedule 2A of VERA 1994 very closely - a tenant will be entitled to keep the car there on a SORN, unless perhaps is is in breach of a specific agreement they have signed with the Housing Association. Are any of your tenants co-habiting? Have any got a new boyfriend or girlfriend in the last 6 weeks?! Could
  18. That is not correct. Although the DVLA might prefer such a narrow interpretation. My case specifially addressd that claim. I won that point and the court explicitly raised in in their judgement. I had already effectively won as Clark vs Kato applied - but they said IN ADDITION the area was effectively a council car park and that it was ALSO created for the resident to use, so Schedule 2A applied. They found the two arguments were not mutually exclusive - It could be BOTH open to public use and 'normally' only used by the residents. The correct interpretation therefore is not:
  19. Then someone in that position will probably have good grounds to appeal. No Magistrate can contradict a House of Lords ruling where it is applicable which was agreed in my case. Correct. The relevance is the DVLA do not like the narrow language of VERA, so they try to apply the definition in Section 192 of the Road Traffic Act... not because it is more precise, but because it is more vague. They apply it incorrectly - and once they reach for a definition in the RTA then the Clark vs Kato judgement becomes relevant... because that deals specifically about how to interpret Sect
  20. Relevant extract from Clarke vs Kato which is the judicial precedence on this issue (with my emphasis): "The initial analysis distinguishes the carriageway and the car parking areas within the car park. That may be an acceptable analysis in some cases, although it may lead to undesirably fine questions whether a vehicle was in a bay or on the carriageway. But once that analysis has been adopted it is not then permissible to claim that the car parking areas are an integral part of the carriageway and so establish the whole as a road. Once the analysis has been made which distinguishes ar
  21. This is my old car clamped while parked in the 'vicinity of my dwelling' (marked in red) in a parking area used by the residents... within a marked parking bay: This is one of the letters a neighbours gave me from the 1980's showing that contrary to the Councils current claim that the parking areas throughout the estate are all 'lay-bys' the purpose and function of these areas was always to provide parking for the residents... this was accepted by the Court. In the letter you can see the Council 1) they created the areas to 'provide adequate parking for the residents' 2) Th
  22. My case tested both these pieces of law. I won the case - so the matter is now settled. This argument is what the DVLA presented and it failed in Court. A House of Lords precedent from Clark vs Kato applies. So car parks, parking areas and parking bays CANNOT be road.... EVER. (I may explain in more detail later but even bays painted on the main carriageway could be considered exempt!) DVLA may tell you that - but that is not necessarily correct. It will depend on more factors than whether the public have access or use. Again this is also now settled in Court and I w
  23. To put some of the facts I have detailed so far into context, here are three ariel images of the actual location in question in my Court case. 1. Ariel map showing my car parked in the vicinity of my dwelling, in a parking area that is normally enjoyed with that property. (These are not private spaces, they are not numbered and not limited to residents. All of those details are irrelevant!) [ATTACH=CONFIG]57283[/ATTACH] 2. This map is based on a map provided to the DVLA from my local council. This displayed all the 'adopted highway' in pink, which they claimed was ALL therefore '
  24. Good fun for him I'm sure, but along with all the Freemen On The Land fruitcakes, this can only have the effect of making the DVLA even more dismissive of people with genuine cause to complain Still... I shall pray that the Spaghetti Monster is an avenging god!
  25. You are correct. The point I was making is that when the DVLA are asked they will get it wrong - if they comment at all (they have a written policy advising staff not to discuss the definition of 'public road'). So will NSL and so will your local authority, both of whom are heavily influenced by the DVLA in interpretations. The reason for this is partly because they have not got a proper grasp of the legislation but mainly because they tend to favour very narrow 'interpretations' that are convenient for them. These interpretations are not necessarily lawful until a court agrees to
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