Already clamped but now being taken to court! Am i right?

[rhysd1309]

Hello, ive never posted on here before but have gained alot of knowledge from browsing it from time to time.

 

my problem is that DVLA have taken me to court for keeping a car on the road with a sorn notice in force

 

I was under the assumption that if the road is unadopted (which i have evidence of) then a vehicle can be parked with a sorn notice.

 

A summary of the requisition i have been sent.

 

On 28/09/2011 defendent kept an unlicensed vehicle on the road.

The previous license expired on 30/04/2011

Sorn Applied: 03//05/2011,

They are saying i came into ownership on 15/03/2011,

i know this isn't true,

i got the vehicle without a logbook and had to apply for a new one,

obviously the previous owner has got the wrong date,

i acquired the vehicle closer to the date of the offence.

 

At the minute i havent got any proof as i didnt get any information from the dvla about the previous keeper.

 

i got home one day to find the van clamped.

I rang DVLA and handed over around £200 to get the car released.

I explained it was sorn and i was waiting for the log book so i could tax it.

They said that it was still unlawful.

 

My road at the time was access to maisonettes mainly owned by the councils housing department.

The street sign says unadopted and i have confirmation that the road is unadopted from the council.

 

until today i forgot about it until i got a letter asking me to appear in court for the offence facing a £2500 fine, £60 costs and £86 for the unpaid duty while the vehicle was in my possesion.

 

I feel like they are in the wrong here and the car shouldn't have been clamped in the first place as it was parked on an unadopted road.

 

Not on a pavement,

 

can i stand up in court,

 

could i even try and get that £200 release fee back from last year?

 

or am i on the other side of the spectrum and looking at a hefty fine for my ignorance.

 

Cheers

[dx100uk]

i think you will find it matters not it was an unadopted road

 

if it was not gated private land then it makes no diff

 

it has general public access

 

dx

[rhysd1309]

I thought that was when it was uninsured? Why should a vehicle have tax if it is parked on a road where it isnt maintained by the highways agency?

[dx100uk]

because it is a still a public accessed road

 

this come up last week too.

 

dx

[Raykay]

The requirement for a vehicle licence has nothing to with public access or gates.

 

A licence is required if the vehicle is used or kept on a public road - a road maintained at public expense. If not on a public road, a SORN declaration can be made in place of a licence.

 

So if the road it was on is not maintained at public expense, the SORN would be valid and no licence is required .

Edited February 22, 2012 by Raykay

[rhysd1309]

I get your'e point, but why would the public having mere access to an unadopted road have a difference whether it is taxed or not, tax is payed for the upkeep of the roads owned by the highways agency, and the road the car was on is unadopted therefore doesnt get maintained by money generated by VED but by the councils housing department who b uilt the road so people could get access to the car parks alongside the maisonettes. I can understand why a car would need insurance (which it did) but surely its the same as parking it on my drive. The street was a culdesac leading to small car parks. The council told me it was an access road maintained by the housing association. But couldnt tell me if i was ok to leave a sorned car their or not.

 

Ill ask my solicitor tomorrow and hopefully get a definitive answer once and for all.

[rhysd1309]

The requirement for a vehicle licence has nothing to with public access or gates.

 

A licence is required if the vehicle is used or kept on a public road - a road maintained at public expense.

 

So if the road it was on is not maintained at public expense, no licence is required.

 

Thats what im hoping for, it makes perfect sense but ill have to see what happens. Im not holding much hope. If i am in the wrong i have already paid £200 to get the clamp taken off, now they are trying to scav even more out of me. I think i need to seek legal advice as the DVLA will just try and bombard me with jargon to keep me quiet.

[dx100uk]

i notice raykay has correctly corrected me,

however, again, as point above by raykay

i hope the car was SORN then?

 

dx

[Raykay]

Find out who maintains the road - start with the local council, it won't be the Highways agency as they only deal with Trunk Roads and Motorways.

 

If it's not a public road (maintained at public expense), get it in writing and send acopy it to DVLA.

[rhysd1309]

Well ive spoken to my solicitor and they are telling me to send in an early guilty plea and hope for a minimal fine.

 

They are telling me that as long as the public have access to it then it needs to have tax as its a public road.

Why is this such a grey area!

 

Im am still sure im in the right.

 

Why would a car need tax to be on a road which doesnt get maintained by the council.

It had crater like pot holes and hadnt been resurfaced like the rest of the estate had been.

It was sat there for months on end, they made me cough up for the clamping fee and i had to tax it as i had nowhere else to keep it.

So it just sat their taxed but i still wasnt using it as i was planning on selling it.

 

Ive got a picture of the street sign which says unadopted in big black letters,

and also the council have told me the housing association maintain it supposedly through peoples rent as we had an extra charge on top for getting the grass cut and the corridors cleaned,

so id presume that the road upkeep was included in the service charge.

 

Im stuck and i really dont know what to do.

Whether to bite the bullet and send my guilty plea by post,

or to try and battle the system and probably still get found guilty by some loophole they have designed for occasions like this.

 

The solicitor seems uninterested, and my wage is so low i cant even afford representation anyway

[Tony P]

Well ive spoken to my solicitor and they are telling me to send in an early guilty plea and hope for a minimal fine. They are telling me that as long as the public have access to it then it needs to have tax as its a public road. Why is this such a grey area! Im am still sure im in the right.

In my view you are right and the Solicitor is incorrect.

 

The Vehicle Excise and Registration Act 1994 (c.22) PART III 29 says Road Fund Licence is necessary if using a “Public Road”. PART V 62 defines a "Public Road" as, “in England and Wales and Northern Ireland, a road which is repairable at the public expense”. In Scotland the definition is slightly different due to differing legal set-ups.

 

You need to get the Local Council (roads section - not housing) to confirm they are not responsible for reparing the road.

 

Public access is nothing to do with Road Fund Licence (but it can be for parking regulations).

Edited February 23, 2012 by Tony P

[Raykay]

Well ive spoken to my solicitor and they are telling me to send in an early guilty plea and hope for a minimal fine. They are telling me that as long as the public have access to it then it needs to have tax as its a public road. Why is this such a grey area! Im am still sure im in the right. Why would a car need tax to be on a road which doesnt get maintained by the council. It had crater like pot holes and hadnt been resurfaced like the rest of the estate had been. It was sat there for months on end, they made me cough up for the clamping fee and i had to tax it as i had nowhere else to keep it. So it just sat their taxed but i still wasnt using it as i was planning on selling it.

 

Ive got a picture of the street sign which says unadopted in big black letters, and also the council have told me the housing association maintain it supposedly through peoples rent as we had an extra charge on top for getting the grass cut and the corridors cleaned, so id presume that the road upkeep was included in the service charge.

 

I agree with Tony P, your solicitor does not understand the Vehicles Excise and Registration Act 1994 at all!!!.

(I hope he didn't charge for his 'advice'.)

 

As it is not a public road within the meaning of that act, contact your housing association and get it in writing from them that they are responsible for the expense of maintaining the road, not the public.

 

Then send a copy to DVLA informing them that their contractor had made a mistake and that the SORN declaration was valid.

[rhysd1309]

Thanks so much for the advice! It is really helping, especially as now i can sort of back up what i am saying with the relevant law.

 

I have been losing sleep over this, but my mind is abit more at ease. I will maybe try another solicitor tomorrow.

 

The solicitor was hinting at a charge but i put the phbone down in a haste, simply because of their blatant lack of interest. I rang them first thing and as they were busy i asked them to call me back. I ended up having to ring them at 4.45 this afternoon. I would have been willing to pay them to represent me if i had a strong enough case.

 

I have waived goodbye to the fee i had to pay the wheel clamping unit, but should i ask the court to take this into consideration. I think it was about £200, which in hindsight i may have given them too easily. When i questioned them i just got shunned off by the woman on the phone, throwing jargon at me and telling me im lucky it wasnt taken away and crushed!

 

Anyone got an idea of what steps to take in relation to the court hearing?

 

Thanks again everyone, much appreciated.

 

Rhys

[Raykay]

Write to DVLA with the letter from your housing association, if they don't discontinue the case and it does end up in court, take a copy of the letter with you and show it to the magistrate.

[rhysd1309]

I think that's the best plan of action. I've got a month before i'm due in court, so hopefully it can be resolved by then. I'm sure there is a template i've seen somewhere.

 

I'm not expecting them to drop the case, do you recommend giving them a copy of the relevant law that covers what i am trying to explain.

 

Thanks guys

[Raykay]

I would just write and say that the road is not a public road within the meaning of the Vehicles Excise and Registration Act 1994, and here is the proof - letter from housing association acknowledging that they pay to maintain the road, not the public - and that the SORN declaration was valid.

[Tony P]

I think I would prefer to have a letter from the Council denying responsibility for repairs to the road, sooner than someone else accepting it. That way it is a bit more positive.

 

Send just a copy of the letter (whichever) to DVLA and just mention the Act. At that point I think DVLA will drop the case and order the clampers to refund what you paid them, well before the Court date.

 

If it goes to Court take letter and a print out of the appropriate parts of the Act we quoted - it is on-line.

[Raykay]

A letter from the council is a good idea, but having a letter from who does pay for the maintenance, and it's not the public, will stop any claim by the DVLA that it is maintained by some other public body and therefore is a public road .

[Tony P]

A letter from the council is a good idea, but having a letter from who does pay for the maintenance, and it's not the public, will stop any claim by the DVLA that it is maintained by some other public body and therefore is a public road .

 

I see that point. But the definition in the Act says "repairable at the public expense" not "repaired". Its a matter of the responsibility for repairs, not who has actually been paying for them.

If some other body (Housing Assoc etc) says they repair, it that does not necessarily provide watertight clarity that the responsibility is theirs. I suppose any organisation, Company or person could say that.

 

The perfect solution is two letters

[Raykay]

It's the 'public expense' that is important, ie. who pays - which may not necessarily be the same as who does the actual repairing.

If the housing association say they pay for the maintenance, it can't be a public road.

Without the housing association letter, knowing how devious DVLA can be, they may try and bamboozle the magistrates by claiming it is a public road, although not maintained by the council.

[Tony P]

If the housing association say they pay for the maintenance, it can't be a public road.

Ignoring I live in Russia, I do have properties in UK.

If I were to go outside one of them and pay a contractor to fill in some cracks in the road and resurface it, it can't be a public road?

[Raykay]

'Repairable at public expense' means that the public are responsible for paying for the maintenance, not that the public are responsible for actually carrying out the maintenance, if someone else pays for some work to be done, that is down to them, it doesn't change the responsibility for paying for the maintenance, or the status of the road.

 

In the OP's case, if the housing association are responsible for paying for the maintenance of the road, not the public, it is not a public road.

 

A hypothetical scenario is if the housing association paid the council to maintain the road, it would not change it's status - it would still not be a public road.

Edited February 24, 2012 by Raykay

[Tony P]

'Repairable at public expense' means that the public are responsible for paying for the maintenance, not necessarily responsible for carrying out the maintenance, if someone else pays for some work to be done, that is down to them, it doesn't change the responsibility for paying, or the status of the road.

 

Exactly my point and what prompted my response to you.

 

In post 5 you said "So if the road it was on is not maintained at public expense, the SORN would be valid and no licence is required" .

 

And in post 16 " letter from housing association acknowledging that they pay to maintain the road, not the public ".

 

The second just as I could hypothetically do and state as in my example - that you say doesn't make it a Public Road!

 

It is not the paying, it is the responsibility, that matters. And still anyone can say they are responsible if of a deviouis mind.

 

 

(I'm beginning to sound like G&M - sorry! )

Edited February 24, 2012 by Tony P

[Raykay]

It is not the paying, it is the responsibility, that matters. And still anyone can say they are responsible if of a deviouis mind.

 

It is the responsibility for paying that matters - 'repairable at public expense' = the public are responsible for the paying for the maintenance.

If the public are not responsible for paying for the maintenance, it is not a public road.

Someone else repairing the road does not change that responsibility.

Edited February 24, 2012 by Raykay

[Tony P]

I am glad to see we agree (despite some unclear/ambiguity earlier)

It still leaves open the validity of anyone's claims to be responsible, in the eyes of DVLA and/or Magistrates. Anyone can print letters.

 

Now, back to the OP.

Keep us informed of progress, and always ask if you have any doubt or query. Someone will know the answer.