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WIN against the DVLA in Southampton Magistrates


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Dear Caggers,

 

I have just won a case brought against me by the DVLA. I told them I would win 9 months ago, but those twerps do not listen!

 

I found this site helpful in some ways when researching for my case but there was nothing exactly clear on my circumstances.

 

So now I know I have won I would like to publish the details of the case to be of assistance to others and before going ahead would like some tips from regular users here on how to best do that.

 

The case involved a car that was SORN, in a parking bay on a street opposite my house. It was clamped for being on the road. The dispute that followed was wether the car was on a 'public road' or not. The DVLA do not like the rather restrictive definition of 'Public Road' in Section 62(1) of VERA 1994, and prefer to use the definition from Section 192 of the Road Traffic Act 1988. This is where they thought they were being clever but actually have messed up.

 

In the process the DVLA lied to me (all in evidence I can show), to the local county council and effectively to my MP. The DVLA prosecutor also got a member of staff from the local council to make a statement that was untrue. All the while charging me £21 per day 'storage fees' for my impounded car since September 2014. They also tried to withhold documents I had requested under Data Protection and Freedom of Information Act (also to avoid my having them before Court) and only supplied them after the Information Commissioners Office wrote to tell them they had breached the Data Protection Act :-)

 

I won the case, because EVERYONE at the DVLA, NSL (the clampers), Havant Council, Hampshire County Council, etc was pretending the law did not apply. Luckily the Court decided the law did apply and they were ALL wrong.

 

This means that in potentially thousands of cases the DVLA and local councils are getting people to settle out of court for offences they have not actually committed.

 

In the process I may have tested an important piece of Law, which is the House of Lords ruling in Clarke Vs Kato which is legally binding on all lower courts. This makes it clear that a car parking space, in particular a car park/parking area CANNOT also be a road.

 

In my case there was no hesitation by the Court in agreeing it applied and nullified the DVLA's claim. In addition they agreed that the parking was associated with a Dwelling under Schedule 2A of VERA and therefore the clamping was unlawful.

 

What I have is the following:

 

  • Paperwork issued alleging the offence
  • My 'Step 1' first appeal/complaint letter - explaining the law that applied & DVLA reply
  • My 'Step 2' second appeal/complaint letter - explaining the law that applied & DVLA reply
  • My 'Step 3' second appeal/complaint letter to CEOs office - and reply
  • My Subject Access Request letter and documents (including the LOCS case management files)
  • My Freedom of Information Act letter and documents (including DVLA policy and staff training)
  • All the paperwork issued in relation to the threat of court action.
  • My 26 page 'skeleton argument' that comprehensively explored the relevant law and Won the case.
  • Dozens of Exhibits, including dictionary definitions, photos, extracts of law, DVLA internal training documents and letters.

 

My own documents and SAR material may prove helpful in providing an example of how to approach writing to the DVLA and other Government agencies. (I also took the UKBA/Home Office to the Ombudsman and won some years ago, using similar approach).

 

The Freedom of Information documents I intend to put into the Public Domain. These include:

  • Written Policy to not discuss the definition of 'Road' with the public (that's why you can never get a straight answer!)
  • DVLA's own 'definition of a road' (which is not exactly correct!)
  • Letters to NSL explaining clamping policy with FAQs
  • NSL clampers handbook explaining when they can/cannot clamp

 

Now I am taking the matter up with the Department for Transport's Independent Complaints Assessor and I shall also be presenting a complaint with the Parliamentary Ombudsman for Maladministration.

 

I may even create a little website to host the documents with explanatory notes.

 

Your comments and suggestions are very welcome. It will take me some time to organise it all, but feel free to ask details about what I have.

Edited by TofuMan
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Ha ha, ''They don't like it up em'', I've been fighting another corrupt govt department for 3 years now,

so this has given me a glimmer of hope!

Who ever heard of someone getting a job at the Jobcentre? The unemployed are sent there as penance for their sins, not to help them find work!

 

 

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Just as a teaser... I shall copy the Facebook post I did for friends as this was unfolding in January:

-------------------------------------

 

I had pre-trial Magistrates court hearing yesterday in 'DVLA vs Damian'.

 

It was agreed that the DVLA will have to prove to the Court, beyond all reasonable doubt, that a parking area is a road.

 

That will be interesting as a House of Lords ruling in 1998 said that car parks cannot be roads.

 

If you are interested in knowing more about the internal workings of the DVLA read on:

 

I did a Subject Access Request and Freedom of Information request on DVLA to dig deeper. They then attempted to withhold information. The Information Commissioner's Office intervened to advise them they had breached the Data Protection Act and must give me everything :-)

 

I was given the DVLA's internal casework records on my file. All the communications between staff and notes and records they made. I was also provided with internal instruction manuals, policy documents and the wheel clampers handbook...

 

Did you know the DVLA have a written policy that staff should not discuss with the public the definition of a 'road' ?! That is because they are not even sure themselves - it can vary according to circumstances.

 

What I found in my case notes was the DVLA's staff have been lying. It seems to be an institutionalised contempt for us 'targets' as they call us.

 

The 'Customer Complaints Resolution Team' have a 3 step complaints system, which you are told means the complaint is supposed to be 'investigated' each time and reviewed. Supposedly at the highest level the complaint ends at the CEO's office. In my case it went like this:

 

Step 1.

They refuse the complaint ignoring any details you raise (i.e. it's unlawfulness).

 

Step 2.

The Step 1 person emails a copy of their letter to the Step 2 person. He then repeats what you were told in Step 1, refusing your complaint and ignoring all the details you raise, including the complaint that they ignore important details (i.e the law).

 

Step 3 (the DVLA CEO's office)

The 'Ministerial Team' now know you have involved your MP, so they write saying they will definitely 'escalate' your complaint and 'investigate' it.

Your Step 3 complaint is sent back to the Step 2 person, who refuses your complaint, ignores all the details you raise, including the complaint about him ignoring all the details in Step 2.

He then gets a colleague to sign the letter.

 

Then if you feel you have been treated rather badly by the DVLA you could decide to take the matter elsewhere. They will not advise you of this, but you have a right to complain to the Department for Transports 'Independent Complaints Assessor'.

 

If you do complain to them, the Step 2 guy will start trying to interfere with that too :-)

 

Step 2 guy will also, without waiting for any further evidence that you have broken any law, without seeking any legal advice, impound your car, and start imposing a £21 per day 'storage fee' (which started in September '14).

 

Step 2 guy will also get the legal team to start a criminal prosecution - however he will offer you the chance to buy your way out of the misery he is inflicting upon you with an Out of Court settlement, providing you simply admit guilt.

 

From his perspective it is important you admit guilt as 1) he will not get into trouble for this mess and 2) they can then accuse you of a second related offence (e.g. no insurance) and pursue you for that too.

 

So thats why I am in court.

 

However, I also found that of over 20,000 Section 29 cases prosecuted every year the DVLA withdraw 7.5% of them before trial because they realise they cannot possibly win.

-------------------------------

 

At that time I was unaware that the case would carry on until April 24th and cause a lot of unnecessary difficulties, including returning to the UK for hearing that then got postponed. Very disruptive to personal and business life.

 

I learned a lot in this process... but I am now only an expert in a thin slice of the Law. But that is all you need sometimes :-)

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Thanks! OK I might start by uploading some of the FoI documents. In particular the DVLA letters to NSL and clampers Handbook.

 

Just ensure they're suitably redacted so as to protect your identity from the petulant DVLA, who will no doubt

be gunning for you now! :thumb:

Who ever heard of someone getting a job at the Jobcentre? The unemployed are sent there as penance for their sins, not to help them find work!

 

 

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best to put everything in a word doc first

then PDF that.

 

 

however please don't post anything dodgy..that you think should not be in the public domian

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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The first document from my Freedom of Information request that I would like to share is the Operating Instructions for 'DVLA's National Wheel Clamping Contractor' version 2.1 which is in force at the time of writing (April 2015)

 

NSL (previously NCP) are the DVLA's clamping goons. They are supposed to have this manual with them at all times and follow its instructions to the letter. Unfortunately they do not - for example they will not check with a local authority whether the land is private/public, maintained at public expanse, etc. BEFORE they clamp your car.

 

I draw your attention in particular to 'Appendix 1 - Flow Diagram' on page 19, which was useful in my court proceedings.

 

Here you will also see that the third box in the chart contains a falsehood:

 

' "is the vehicle on a public road?" '

(as defined in VERA 1994: includes verges, pavements, lay-bys and parking bays on the public road)

If unsure, check with Local Authority

 

VERA makes no such definition... VERA does not define 'Public Road' beyond saying that it is a 'road maintained at public expense'. So here the DVLA are incorrectly trying to apply a vague definition loosely derived from Section 192 of the Road Traffic Act 1998 for their own convenience. (This definition only strictly applies to RTA 1998 offences and must be vague to deal with offences such drunk driving in parks for example, or being high whilst in charge of a unicycle, etc).

 

In over 20 years VERA has been modified amended many times but Parliament has never seen the need to change the definition of Public Road.

 

Under changes brought by the Finance Act 2008, if you have NO tax and NO SORN the Govt can effectively take the car from any public place as they can hold it in lieu of the 'debt' you owe for lack of tax... However, if you have SORNed your car the rules are different - many places are exempt from clamping, which your friendly local clamper will not necessarily be aware of.

 

The DVLA and NSL tried to justify clamping my (SORNed) car by repeated claiming it was in a 'public place' even if it was not a road, believing that that element of the RTA definition could save them... they were wrong.

 

I must also add that the relevant House of Lords ruling states that where the the term 'road' appears on its own, it means only road. (The DVLA's legally dubious twisting of definitions shall not apply!)

 

Unfortunately, with this grossly incorrect definition a clamper may feel confident to go ahead and clamp even when he should not - thereby possibly interfering with a car in a public car park, which could constitute a criminal offence. :-)

 

Looking at the boxes further down the flow chart, in particular the Yellow box, you will see the definition is far more complicated. There are in fact many places that he cannot clamp - 'public' or not.

 

OOOPS, TOO LATE - he has already clamped the car and driven off. ;-)

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Just ensure they're suitably redacted so as to protect your identity from the petulant DVLA, who will no doubt

be gunning for you now! :thumb:

 

Don't worry guys I am well versed in the legal aspects of privacy etc... they can't touch me. (this is all Public Interest anyway)

 

For the Freedom of Information documents - which were issued formally (if reluctantly) by the DVLA as 'FOIR4227' , they are already 'Public Domain' so I am merely sharing them :-)

 

With the communications between DVLA and Myself, if I publish any I shall Redact them and even provide the staff with appropriate pseudonyms!

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The following two documents were provided under a Freedom of Information Request. I requested that they provide to me what internal documents they have that provide a definition of 'public road'

 

From my official response:

 

~~~~~~~~~~~~~~~~~~~~~~~~

 

You asked for:

 

1. A full and current copy of the Vehicle Excise and Registration Act 1994 (with all amendments) which is used by DVLA staff for legal reference. (Please do not refer me to the 'legislation.gov.uk' website - I am requesting a fully amended copy that is used internally).

 

Please find attached the current copy of the Vehicle Excise and Registration Act 1994 that is held. While DVLA holds this copy of the legislation it is information that has been obtained from a third party source and is therefore subject to copyright. You are able to use it for your own personal use but permission to use it for any other purpose will be required. You are already aware of legislation being generally available via. legislation.gov.uk/.

2. Copies of any guidance, training documents, minutes of meetings and discussions, etc between the DVLA and NSL Limited, that make reference to the interpretation and enforcement of Section 29 of the Vehicle Excise and Registration Act (VERA) 1994.

 

3. Copies of any guidance, training documents, minutes of meetings and discussions, etc between the DVLA and NSL Limited, that make reference to the interpretation and enforcement of Schedule 2A of VERA 1994.

 

4. Copies of any guidance, training documents, minutes of meetings and discussions, etc between the DVLA and NSL Limited, that make reference to the interpretation of the Finance Act 2008 in relation to its consequent amendments to VERA 1994.

 

5. Copies of any guidance, training documents, minutes of meetings and discussions, etc between the DVLA and NSL Limited that make reference to the interpretation and enforcement of The Vehicle Excise Duty (lmmobilisation, Removal and Disposal of Vehicles) Regulations 1997.

 

6. Copies of any guidance, training documents, minutes of meetings and discussions, etc between the DVLA and NSL Limited relating to the interpretation of the term 'Public Road' within VERA 1994.

 

In answer to your questions 2-6 DVLA does not hold copies of guidance or training documents that make reference to the interpretation and enforcement of legislation mentioned in your questions.

 

However attached is a copy of the Operating Instructions for DVLA’s national wheel clamping contractor. Page 3 refers to The Vehicle Excise Duty (Immobilisation Removal and Disposal of Vehicles) Regulations 1997 and page 19 refers to The Vehicle Excise Registration Act 1994 and public road.

 

DVLA does not hold copies of minutes of contract meetings with DVLA’s national wheel clamping contractor that contain reference to the interpretation and enforcement of Section 29; Schedule 2A of the Vehicle Excise and Registration Act (VERA) 1994 and public road; the Vehicle Excise Duty (Immobilisation, Removal or Disposal of Vehicle) Regulations 1997; or the consequential amendments to VERA stemming from the Finance Act 2008.

 

7. Copies of any Policy documents, training documents, minutes of meetings and discussions within the DVLA relating to the interpretation of the term 'public Road' within VERA 1994.

 

Attached at annex A is an extract from the operating instructions available to staff in relation to the definition of a public road.

 

Annex B provides an extract from the Vehicle Licensing Enquiry Manual which also provided the definition of a public road and is available to staff.

 

The definition of a public road can also be found in Section 62(1) of VERA, a copy of which is also attached.

 

Number of prosecutions that have been brought by the DVLA in relation to Section 29 VERA 1994 in the year 2013.

DVLA holds this information for financial year 2013/14. DVLA prosecuted 21,863 section 29 cases

 

Number of those prosecutions (in 2013) that were subsequently withdrawn by the DVLA

DVLA holds this information for financial year 2013/14. 1639 withdrawal letters were issued prior to hearings that advised that cases would not proceed.

 

DVLA does not hold figures that record how many prosecutions were withdrawn at Court. In order to provide this information each case would need to be accessed.

 

We estimate this to exceed £600. Under Section 12 of the FOI Act, DVLA is not obliged to comply with a request where the estimated cost of determining, locating, retrieving and/or extracting the information exceeds £600. As it is the DVLA’s policy not to respond to requests for information that would exceed the appropriate cost limit, I am afraid that the information will not be supplied to you.

Number of those prosecutions (in 2013) that were unsuccessful or not accepted by the courts.

DVLA holds this information for financial year 2013/14. 99 Section 29 cases were unsuccessful at Court.

 

Number of those prosecutions (in 2013) that were withdrawn or unsuccessful because of a failure by the DVLA or its contractors to observe the exemptions detailed in Schedule 2A of VERA 1994.

DVLA does not hold statistics to show how many prosecutions that were instigated but were withdrawn or unsuccessful because of a failure by DVLA or its contractors to observe the exemptions detailed in Schedule 2A of VERA 1994. In order to provide this information, we would need to access each individual case. We estimate this to exceed £600. Under Section 12 of the FOI Act, DVLA is not obliged to comply with a request where the estimated cost of determining, locating, retrieving and/or extracting the information exceeds £600. As it is the DVLA’s policy not to respond to requests for information that would exceed the appropriate cost limit, I am afraid that the information will not be supplied to you.

 

 

~~~~~~~~~~~~~~~~~~~~~~~~

 

Can you believe that?! The DVLA keep no records of cases they LOSE? No records of why shonky and unlawful prosecutions fail and why?? No wonder these fools cannot learn from their mistakes.

 

Of course, I do not believe it. Moreover they can also try to withhold documents they may have that would weaken their ability to raise monies under a clause in the Freedom of Information Act... so if you ask to find out the most common reason they lose for example they could lawfully decline to tell you in case we all tried it!

 

I have attached:

 

"FOIR4227 - Annex B Vehicle Licensing Enquiry Manual"

"FOIR4227 - Annex A Definition of a public road"

 

This is where I discovered they have a policy of not discussing it with the public. So that is why forums are full of people complaining that when they ask the DVLA about what is or isn't a 'Public Road' they cannot get a straight answer.

 

The next document I would like to upload but cannot is the DVLA's internal copy of VERA. I believe this may be subject to copyright restrictions. (it contains more than VERA it has notes included)

 

The public version of VERA (legislation.gov.uk/ukpga/1994/22/contents/) is unreliable because of the large number of amendments outstanding. this makes it difficult to know what parts of it may have been amended or repealed by later Acts.

 

If you find yourself in a legal dispute that involves VERA I suggest you request from their Information team (under a formal Freedom of Information Request) the full copy they use internally. You should say it is the copy provided in FOIR4227 'Reproduced by permission of Reed Elsevier (UK) Limited trading as LexisNexis'. They will have no legal basis to withhold it from you.

 

It was clear that the DVLA were withholding information from me.... could they really be seriously admitting that they keep NO RECORDS of communications or meetings with their exclusive contractor NSL?

 

So I requested an Internal Review, to check they had actually complied and shall post the further documents in another post.

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After my complaint that it was frankly unbelievable that the DVLA had NO RECORDS of any communication between them and their contractors, I received this response on the 16th December (by which time prosecution in Court was looming!):

 

~~~~~~~~~~~~~~~~~~~

 

Thank you for your e-mail dated 13 November in which you expressed dissatisfaction with the response to your Freedom of Information request sent to you on 12 November. DVLA has treated your e-mail as a request for an Internal Review and revisited your initial request for information sent on 18 October.

 

Having reviewed your request, it appears that DVLA interpreted your request too narrowly and for this I apologise. While DVLA does not hold copies of any guidance, training documents, minutes of meeting and discussions etc with NSL Ltd with regard to questions 2 – 6 of your request, information is held with regard to such between DVLA and NPC who now trade as NSL Ltd.

Therefore please find attached relevant information between DVLA and NPC in relation to guidance given when changes to legislation were introduced in 2008.

 

The information redacted from the attachments is the names of individuals and that information has been redacted under section 40(2) of the FOIA because it is considered to be personal information. DVLA has to consider whether releasing the information would breach any of the data protection principles. In this instance, it would not be fair to release information that could lead to an individual being identified especially where removing that information has no impact or affect on the information being released.

 

~~~~~~~~~~~~~~~~~~~

 

The first two documents I have are minutes from a meeting with NSL (Then NCP) in 2008

 

'FOIR4227 - Wheelclamping Contract Meeting Minutes redacted agreed with FOI'

'FOIR4227 -QA Briefing'

 

They make moderately interesting reading. They show the DVLA responding to the change in the legislation caused by the 2008 Finance Act, which clearly excited them for its revenue making potential.

 

It also clearly shows that they are aware the public will be unaware of these sudden and dramatic changes...

 

More attachments from this FOIR will follow in next post.

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The next documents are 'Annexes' from 2008, provided by DVLA to NSL (then NCP). I believe these documents are still correct (in terms of DVLA policy) today.

 

FOIR4227 - Annex A: "VED Enforcement Beyond the Public Road"

FOIR4227 - Annex B: "Matrix For When Wheel Clamping Action Can Be Taken"

FOIR4227 - Annex D: A list of automatic authorisation messages about status of vehicles, to clamp or not...

FOIR4227 - Annex E: Letter 03/09/2008, "NEW POWERS FOR WHEEL CLAMPING UNLICENSED VEHICLES IN OFF ROAD AREAS"

 

FOIR4227 - Annex C: is a table of fees and fines which is now out of date - so not uploaded.

 

If any one is curious about how these documents relate to Section 29 offences etc, feel free to ask how I applied them.

 

Also I strongly advise making yourselves familiar with Clake vs Kato or to give it it's full name:

 

Clark (A.P.) and Others v. Kato, Smith and General Accident Fire & Life Assurance Corporation PLC

Cutter v. Eagle Star Insurance

 

http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd981022/clarke01.htm

 

In my court case yesterday this Lords Judgement was definitive in determining that my car was in a 'car park' not on a 'public road'.

 

The Court also said without any doubt that the area of land in question, a small parking area I was in, was 'associated with a dwelling' in this case my home and that of neighbours. So the clamping was not correct in any case.

 

Just as I told the idiots in July 2014. :-)

 

This is important because the DVLA regularly provide false information to people. They tell you the land must be 'private', or that car parking spaces must be allocated or numbered, etc. This is all utter nonsense - there is NO SUCH REQUIREMENT under VERA and furthermore the DVLA's own handbook and instructions to contractors advise that you do not even have to have your car outside YOUR OWN HOME!

 

The advice DVLA staff give to the public can directly contradict the guidance they give to their contractors.

 

Under Schedule 2A of VERA the relevant issue is whether the land is associated with a dwelling place and normally enjoyed with it, even if it is not your dwelling.... I shall expand on that later I am sure.

 

OK thats a good start, I am going to go out for a while and will answer any questions or upload anything else that may be helpful later :-)

Edited by citizenB
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Out of interest, do you have any documents from the court showing that the case against you has been thrown out?

 

To be pedantic... it wasn't 'thrown out' - as in being inadmissible or failing on some legal process technicality, etc. It was heard by the court and the DLVA simply LOST because they had wrongly interpreted the law.

 

I only won the case on Friday afternoon, so I have not yet received the paperwork. But I was there, so I heard the Court say 'We find in Favour of...' ME! Also that the prosecutor stated that they would not appeal. :-)

 

For future reference the case details are:

 

D Eadie vs DVLA

Case 1400515280

Heard 24th April 2015

Southampton Magistrates' Court.

 

I have requested a written copy of the Judgement of as I will need it for the next steps I want to take. I have no idea when or how it may be published elsewhere nor how much detail they will go into - they were quite brief in Court. They spent a long time reading the documents and then when we came back in they sat us down issued the Judgement immediately confirming the points of Law I had always argued applied in my case did indeed apply - and that was it.

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Did you receive all your expenses/costs in the Judgment ?

 

Not really. I 'won' the right to be innocent.

 

I was being prosecuted and represented myself so no official costs to recover (they cannot compensate for wasting hundreds of hours thinking about it and dealing with the cowardly dogmatic automatons at DVLA). :-(

 

They asked if I would like 'out of pocket' expenses for the day, which was only £4.50 parking and a bit of diesel, so I said we'll not worry about that!

 

The damage and interruption to my business and personal life may be compensated via other channels later... (Not giving anything away to DVLA just yet!)

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You could have claimed quite a bit, days off work, letters sent... Sounds like you would have been in for £100+ but probably more.

 

Well, I look at it like this...

 

I did not:

  • do something 'borderline' unlawful or even unreasonable
  • then get prosecuted
  • then got away with it

 

 

What actually happened:

  • I acted entirely within the law at all times
  • I got incorrectly targeted by DVLA clamper
  • I advised NSL & DVLA of their error immediately and was ignored
  • I wrote to advise them of the correct law and their error and was given utterly false information and excuses
  • I wrote a second time to advise them of the correct law and staff connived to dispose of the complaint
  • I wrote a third time to the CEO and was lied to by DVLA staff who then passed it back to previous staff to connive again
  • I had my property unlawfully removed by a state Agency without a trial or an order from a Court
  • I asked for my personal data and evidence of DVLA policy to prove they were right, they tried to withhold it
  • I was the dragged into a court to defend against a prosecution for a criminal offence I knew I had not committed
  • I was presented with different justification at trial to what had been said previously - with dodgy 'evidence' knocked up by my local council
  • I was found to be entirely innocent because I never did anything illegal in the first place
  • It was confirmed by the Court that I had always been correct on the interpretation of the law

 

So, I'm not exactly delighted to have 'won'! Sure, it's better than losing but I never should have experienced ANY of that.

 

The Magistrates' Court is not the place for dealing with such a debacle, they just stopped the nonsense happening. Its my turn now.

 

I think the final cost to them will be rather higher than £100. I'll detail that when the time comes ;-)

Edited by TofuMan
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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 'Public Road', i.e road maintained at public expense.

The problem is Public Road has to be Road in the first place.... a parking court at the back of my property and parking areas along the road are not 'road'.

[ATTACH=CONFIG]57282[/ATTACH]

 

3. A map showing what the House of Lord's Judgement in Clarke vs Kato would define as areas that may be potentially be considered 'road' within the definition in Section 192 of Road Traffic Act 1998. The car parking spaces and parking court definitely CANNOT be road.

[ATTACH=CONFIG]57285[/ATTACH]

 

I pointed out in my THREE letters to the DVLA that the 'pink map' contained an error in showing the parking court as a 'road' and was therefore unreliable evidence. They would not accept this. Yet the prosecutor decided not to use this map after all! (He had brought it to the pre-trial hearing). Instead he got my obliging local council to create a new map and a supporting letter claiming these car parking spaces, perpendicular to the road were a 'lay-by'. :-) FAIL

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It could be that the DVLA consider that those parking bays are 'on road parking bays' and are part of the road. 'Public Road' within the meaning of the Vehicles Excise & Registration Act 1994 is different to that of 'Road' within the meaning the Road Traffic Act 1998, and can include footways, verges etc., if repairable at public expense.

 

 

Also the exemption in Sch.2A, (1A), (b), V.E.R.A. Act 1994, only gives exemption to a place which is normally enjoyed only by the occupiers of one or more of the dwellings, so if anyone can park there, it is not exempt from clamping.

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My case tested both these pieces of law. I won the case - so the matter is now settled.

 

It could be that the DVLA consider that those parking bays are 'on road parking bays' and are part of the road. 'Public Road' within the meaning of the Vehicles Excise & Registration Act 1994 is different to that of 'Road' within the meaning the Road Traffic Act 1998, and can include footways, verges etc., if repairable at public expense.

 

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!)

 

Also the exemption in Sch.2A, (1A), (b), V.E.R.A. Act 1994, only gives exemption to a place which is normally enjoyed only by the occupiers of one or more of the dwellings, so if anyone can park there, it is not exempt from clamping.

 

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 won arguing that this was incorrect interpretation of Schedule 2A.

 

I would urge anyone reading this to look at the PDFs I have uploaded earlier in this thread - they show the DVLA's internal documents acknowledge it is not so simple - particularly relevant is the Matrix of where they can and cannot clamp, the FAQs presented by DVLA to NSL and the flow chart in the Operating Instructions handbook for clampers. (Not that any staff at the DVLA or NSL seem to have a clue about these)

 

The DVLA make many incorrect statements and claims when dealing with public enquiries - these even contradict their own internal policies (See PDFs). There is NO REQUIREMENT in VERA 1994 that the parking is strictly allocated to residents, or that bays are individually numbered or allocated to dwellings. The vehicle in question does not even need to belong to a resident - it could belong to a friend who is keeping it there... if it is 'land associated with a dwelling' they MUST NOT CLAMP. (these are all detailed in the PDFs I obtained under the Freedom of Information Act)

 

In Court the DVLA argued that while the parking spaces were 'predominantly used by residents' they could be used by anyone and there were no restrictions limiting it to residents only - therefore Schedule 2A did not apply.

 

The Court decided they were wrong in assuming these things are mutually exclusive. Court ruled that the parking areas amount to a 'council car park' and while it was open to any public to use it was ALSO indisputably associated with the surrounding dwellings.

 

I know for a fact that the council installed those parking bays in the 1980s as residential 'parking for the residents' which I could prove to the court with letters from 1984 and 1985 in which a resident is being told to use the 'parking facilities provided' and how the council had spent a long of money providing 'parking for the residents'...etc. Had I gone exploring in the local council archives I could have produced a wad of evidence on that. Only during prosecution (30 years later!) did they start pretending the parking areas were 'lay-bys'.

 

I presented a comprehensive argument on the use of language in legislation (all from Clarke vs Kato) and supported it with dictionary definitions and illustrations of photographs of parking spaces around the local estate showing that these parking areas are common along many roads, and even in cul-de-sacs where there is no traffic - which undid the claim that these are 'lay-bys' installed to avoid obstruction of the highway.

 

I pointed out to the court that when the estate was built in the 1950s/1960s almost none of the residents had cars and it would be a bizarre approach by the council if rather than create parking areas for the residents as car ownership increased, they decided to instead install a dozen miles of 'lay-bys'. In addition the definitions of 'lay-by' simply to not fit the description of the land.

 

House of Lords precedent means the Court must take into account the purpose and function of the land, and whether it has the characteristics of a road. It was created with the purpose of being a car park, had always been used as a car park. It provides no facility to commuter or local shoppers... the councils own letters stated it was used 'predominantly by residents' historical letters show the council telling residents to use them.... so the Court had no hesitation to state that Schedule 2A applied.

 

They held up a photo of the car in the parking bay with a clamp on it for the prosecutor to see and said 'This is NOT a road!'

 

I will probably provide more on the Clarke vs Kato case and how it applied and the interpretation of it in relation to DVLA's lies. It is important people understand this House of Lords precedent as it is binding on ALL lower courts all the way down to the lowest courts - Magistrates.

 

It has serious consequences for the thousands of people who are wrongly accused of criminal offences under Section 29, but who cannot tell if they are innocent or not because the DVLA will refuse to discuss it with them (again see PDFs for Policy telling staff to avoid discussing definition of road).... so people who are under threat of having proprty seized and destroyed without a court proving them guilty need to have access to the PDFs I have uploaded to determine if they actually have committed an offence or not - because the DVLA will not give an honest answer.

Edited by TofuMan
Clarification
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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) They urge my neighbour to 'make use of the facilities provided'

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