Definition of Public Highway for SORN?

[rupertlssmith]

From this post: http://www.consumeractiongroup.co.uk/forum/dvla/115131-sorn-untaxed-vehicle.html

 

It is claimed that: For the purposes of VED and SORN, the definition of a public highway is "a road maintained at public expense".

 

My SORNed motorbike was clamped by the DVLA today. It was parked on a short piece of pavement/rough ground on the edge of a private car park belonging to a housing association that neighbors where I live. I have to admit I was chancing it by leaving it there, but I couldn't get it into my garden due to the narrow entrance. Still, I think it was off the road and on private land, albeit not my land. I have parked it there for the last couple of years and no-one has so far objected. I wanted to SORN it for now as I have bought another vehicle and just not using it at the moment.

 

The clamp was very poorly attached, so I removed it (causing no damage, it was only attached to my d-lock so it came off when I removed that) and then took the whole bike away and stored it at my mothers house. That may not have been wise, but I was annoyed at the prospect of having to pay £260 quid to get it unclamped and then attempt to argue my case, the chances of me getting the £260 back being virtually nil, I should think.

 

What I want to know is, how correct is that above definition of public highway? The bike was in no way on the road surface, it was entirely on the pavement/rough ground at the edge of a car park. If it is not on the public highway and SORNed, I think I am in the right and it should not have been clamped. I don't know if the pavement belongs to the council or the housing association. If it belongs to the council, does that count as public highway?

 

Thanks for any advice you are able to give.

Edited July 27, 2009 by rupertlssmith

[dx100uk]

yes

 

dx

[rupertlssmith]

erm... yes what? That's not a helpful reply.

[patdavies]

dx is right - that is the definition of public highway for SORN.

 

However, from your post, the pavement may be a grey area. Is it part of the private land/car park or is it part of the highway maintained at public expenses?

[dx100uk]

sorry the last bit

if its council owned pavement. they can clamp you for no tax.

 

hey good work on the clamp BTW!

 

dx

[rupertlssmith]

dx is right - that is the definition of public highway for SORN.

 

However, from your post, the pavement may be a grey area. Is it part of the private land/car park or is it part of the highway maintained at public expenses?

 

Thanks for the reply. I'm not entirely sure who owns it, so maybe I should check with the land registry. I'd say I'm about 75% confident that it belongs to the housing association.

[rupertlssmith]

sorry the last bit

if its council owned pavement. they can clamp you for no tax.

 

hey good work on the clamp BTW!

 

dx

 

Well they did. So what now? Should I phone the DVLA and try to argue my case, or just sit tight for now and see if a fine comes in the post. Will they still try and make me pay the £260?

[patdavies]

Thanks for the reply. I'm not entirely sure who owns it, so maybe I should check with the land registry. I'd say I'm about 75% confident that it belongs to the housing association.

 

Ownership is totally irrelevant. (I own the public highway outside my house up to the centre line).

 

What matters is who maintains it

[rupertlssmith]

Ownership is totally irrelevant. (I own the public highway outside my house up to the centre line).

 

What matters is who maintains it

 

Ok, thanks for the info. What constitutes a 'highway'? Is pavement a highway or only road surface?

 

The notice on the vehicle said that it was an offense to 'interfere' with the clamp. As it was so easy to get it off, I didn't think removing it would be interference. Now looking at the leaflet I can see it says it is an offense to remove it. Oops, though maybe I could argue that I only removed my d-lock and not the clamp as that is quite a literal description of how I removed it.

 

Am I going to get charged for removing the clamp?

 

Thanks for the replies so far btw. This is causing me some stress.

[patdavies]

Ok, thanks for the info. What constitutes a 'highway'? Is pavement a highway or only road surface?

Road surface is 'carriageway'; 'highway' is the total width including pavements, verges, etc. right up to the boundary. Details of these boundaries will be held by the highway authority.

 

The notice on the vehicle said that it was an offense to 'interfere' with the clamp. As it was so easy to get it off, I didn't think removing it would be interference. Now looking at the leaflet I can see it says it is an offense to remove it. Oops, though maybe I could argue that I only removed my d-lock and not the clamp as that is quite a literal description of how I removed it.

 

Am I going to get charged for removing the clamp?

 

Thanks for the replies so far btw. This is causing me some stress.

 

But you didn't remove it did you?

 

You removed a part of your bike (for example. for maintenance) and the clamp fell off.

 

You are not responsible for NCP's negligent fitting.

 

If you were to remove it, then that is a criminal offence over and above any fine for having an untaxed vehicle on the public highway.

 

You need to find out asap whether where you were parked is public highway or not. Otherwise, they will still pursue you for the fines - clamp or no clamp.

[nehpets]

The pivotal factor in this matter is who owns and maintains the area which the bike was parked on. Clearly the first step is to establish ownership. From there you can establish who maintains it. You’ll need to view records at your local council offices. Quite often car parks constitute ‘adopted roads’ in terms of the law (people sometimes fall foul of this when they take their underage kids to learn to drive in a quiet shopping centre car park).

The small print at the council offices will be key. Sometimes pavements and access paths are maintained at the expense of “the frontagers” (ie the people whose properties adjoin the path or car park) – if this is the case then you’ll be off the hook – simply contact the DVLA and explain their ‘mistake’ and specify that they have 3 months to arrange the collection of their clamp from your premises. If on the other hand the paths are maintained at ‘public expense’ then you’ve got a problem. If that is the case then the best advice is to come clean and pay the fine quickly and explain about you taking off the D lock. My guess is that if you pay quickly they’ll make no further fuss.

 

N.

[patdavies]

The pivotal factor in this matter is who owns and maintains the area which the bike was parked on. Clearly the first step is to establish ownership.

 

No. As I pointed out above, ownership is totally irrelevant; all that matters is who pays for maintenance.

From there you can establish who maintains it. You’ll need to view records at your local council offices.

To determine if it is part of the public highway, then the highway authority is the first port of call (as mentioned above). The highway authority is usually the County Council - not the local council.

 

Quite often car parks constitute ‘adopted roads’ in terms of the law (people sometimes fall foul of this when they take their underage kids to learn to drive in a quiet shopping centre car park).

 

If a road is adopted, then it is maintainable at public expense ( I don;t see that in many car parks in 'quiet shopping centres'). I believe that you are confusing the RTA definition of public road - used for RTA offences.

[nehpets]

As an example car parks with more than one entrance will sometimes have what is legally considered to be 'an adopted road' running through it. This doesnt mean that it is maintained a public expense. This is where it sometimes gets confusing.

 

The highway authority will not always be able to tell you weather or not the area of land / pavement is considered to be highway. The legal owner is more likely to have a better idea as their deed will specify this. There are many occasions where people dispute "public highway" claims and very often they are not clear cut. When you buy a property your solicitor will normally check that you will have no responsibilty to maintain an area of land or car park because this is potentially a very expensive business. If your house is a new build and the road is not yet adopted your builder will probably have a bond in place to cover adoption costs if he goes bust before the road is officially adopted.

 

N.

[patdavies]

As an example car parks with more than one entrance will sometimes have what is legally considered to be 'an adopted road' running through it. This doesnt mean that it is maintained a public expense. This is where it sometimes gets confusing.

Adopting a road specifically means moving to maintenance at public expenses.

 

Establishing a public right of way, OTOH, does not

 

The highway authority will not always be able to tell you weather or not the area of land / pavement is considered to be highway.

They are the only people who can. Only they have the definitive maps showing the extent of the highway

 

I think that you are confusing right of way with pubic highway.

[rupertlssmith]

To report back. Its been about a month now since the clamping of my bike. I have heard nothing more from the DVLA. Either they realized they were in the wrong, or with no clamped vehicle to hold random decided its not worth trying to pursue this any further.

[Britainsworstdriver]

Yeah, ok. I would be expecting a summons or visit from the police if I were you.

 

Where is the clamp now?

[rupertlssmith]

So eventualy the DVLA got in touch and demanded I pay about £40 to cover the unpaid tax, and a small administration fee. I paid up, and wrote to them saying that by paying I was not accepting that they were in the right, but was only paying because it was the minimum amount of hassle.

 

Nothing ever happened about removing the clamp.

[grumpy101]

Adopting a road specifically means moving to maintenance at public expenses.

 

Establishing a public right of way, OTOH, does not

 

They are the only people who can. Only they have the definitive maps showing the extent of the highway

 

I think that you are confusing right of way with pubic highway.

 

This SORN lark is a dreadful [problem] as last year they were clamping cars that were for sale at car dealers in Exeter and these cars were on private land and in the hands of the motor trade hence exempt from the SORN scheme. They also clamped a limo that had been driven to the garage without tax for its pre-arranged annual MOT. It is perfectly legal to drive without tax if one is travelling to a pre-arranged MOT but for the journey home I usually tax the car using a mobile phone before I leave the test centre. As to the land, I am not a lawyer but I do know that there are lots of bits of unconveyed land and unclaimed land within the UK. It is quite possible that where you parked your bike was land abandoned by the builders of the house. The state does bend the rules though because I know a man who was breathalysed on a private farm road. The police took the attitude that as the public can go up the road without paying it was a public road!

As to the Exeter car dealers, the ones who had trade plates were able to get their seized vehicles returned but such heavy handed Gestapo like behaviour is what one might expect in Zimbabwe.

 

By the way my reason for searching was to find out the difference between highway and carriageway as in Cornwall people are constantly trying to claim the grass verges by placing white painted stones there. They seem to think that they can grab all the land that doesn't have tarmac on it!

[patdavies]

1) It is not necessary to tax the vehicle before leaving the test centre (what would you do if it failed). the vehicle remains an exempt vehicle during the journey to and from a pre-booked MoT test (and to/from repair following a test fail)

 

2) There are different definitions of public highway for Vehicle Excise and Registration Act and Road Traffic Act offences. Driink/driving is an RTA offence and the RTA definition of highway is what is relevant. For VERA, the definition is precise within the Ac t - a road maintained at public offence

 

3) neither the cars on garage property nor the limo should have been clamped. But if you think the DVLA are thick, imagine what their sub-contractors are like.

[grumpy101]

1) It is not necessary to tax the vehicle before leaving the test centre (what would you do if it failed). the vehicle remains an exempt vehicle during the journey to and from a pre-booked MoT test (and to/from repair following a test fail)

 

2) There are different definitions of public highway for Vehicle Excise and Registration Act and Road Traffic Act offences. Driink/driving is an RTA offence and the RTA definition of highway is what is relevant. For VERA, the definition is precise within the Ac t - a road maintained at public offence

 

3) neither the cars on garage property nor the limo should have been clamped. But if you think the DVLA are thick, imagine what their sub-contractors are like.

 

The clamping contractors argument seemed to be that although some of the cars (trade-ins?) were in the hands of the motor trade, they motor trade had not yet done the paperwork to SORN them. The motor trade stated that because these cars were for sale and could be sold at any time SORNing and sending the tax disc and log book to DVLA would hinder their business. It was a horrible can of worms with too many Jobsworths being a pain.

[grumpy101]

What is a Public Road or a public place varies according to the law that is being applied. For example I heard about a young man who worked in Dorset as a transmitter technician for the BBC. On his 21st birthday he went to the pub meaning to have a couple of drinks. His friends met up with him and bought him lots more. In the end he was very drunk. As he did not want his landlady to see him drunk he decided to sleep in his estate car which was in the pubs car park at the rear. Later the police arrived and the man was charged with being drunk in charge of a motor vehicle. (he should have given the keys to somebody else or posted them back to himself) Allegedly the local rag got hold of the story and splattered the story all over the front page. The headline was "BBC Engineer Fined and Banned For Drunk Driving". In this case although the car was on private land it was land that Joe Public had access to without paying an entry fee so for this particular law it was in effect a public road. If on the other hand the man had obtained permission to store an untaxed car there the land would be classed as private land for the purpose of SORN.

 

"In an English Court you don't get Justice, you get Law" - this saying is attributed to the late Lord Denning, Master of the Rolls (nothing to do with Rolls-Royce cars but the highest judge in the land)

[Raykay]

Different acts of parliament have different definitions, some offences that are contrary to the Road Traffic Act 1988, which include drink driving, can be committed 'On a road or other public place', a pub car park is usually considered to be 'other public place' rather than a road.

 

A 'public road' within the meaning of Vehicles Excise & Registration Act 1994 is ' In England and Wales and Northern Ireland, a road which is repairable at the public expense, in Scotland, has the same meaning as in the Roads (Scotland) Act 1984'. Which would not include a pub car park if a private landowner was responsible for the expense of the maintenace of it, and a vehicle parked there can legally be SORN.

[Tony P]

Yes.

The VE&R Act 1994 (c.22) PART III 29 says tax is necessary if using a “Public Road”

PART V 62 defines exactly what is a 'Public Road' for this Act.

 

It defines it differently for England and Wales, Scotland and N Ireland because of differing legal situations.

There is no definition of a Public Road outside those territories.

 

Despite that, DirectGov says you should have Road Tax if the vehicle is abroad, but gives no definition of what consitutes a 'Public Road' in (say) France, China or on the Moon.