WIN against the DVLA in Southampton Magistrates

[Raykay]

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 will explain later but even bays painted on the main carriageway should be considered exempt!)

 

Your case was dismissed, but it may not be valid argument in other similar cases, and a different court may not agree.

 

The Clarke v Kato case was a Road Traffic Act matter, and Lord Clyde in his submission said "The proper function of a road was to enable movement along it to a destination. Incidentally a vehicle on it might be stationary. One could use a road for parking".

 

 

Which is what normal 'on road parking' is, and may be what the DVLA considered was relevant in your case.

 

 

 

 

As far as Sch. 2A, V.E.R.A. is concerned, if the parking spaces were predominantly used by residents and could be used by anyone and there were no restrictions limiting it to residents only, sch.2A would not apply, as for that exemption, the place must be normally enjoyed only by the occupiers of those dwellings.

[TofuMan]

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 areas of road from areas of car park, the latter cannot simply be integrated with the former

."

 

This was cited by the Court in their Judgement.

 

The Lords judgement in Clark vs Kato goes further stating (with my emphasis again):

 

"

The distinction between a road and a car park which is reflected in the ordinary use of words is reinforced by a consideration of the language of the legislation

. Section 25 of the 1988 Act which prescribes the offence of tampering with a vehicle starts with the words "If, while a motor vehicle is on a road or on a parking place . . . ." This plain recognition of a distinction between the two things cannot, as was suggested in argument, be put aside as simply a fortuitous anomaly in a consolidation statute, particularly when one finds the same distinction in the earlier appearance of the provision in section 29(2) of the Road Traffic Act 1930. Indeed the recognition of parking places for vehicles as a distinct matter can be found in section 68 of the Public Health Act 1925 where a specific definition of the term is given. A corresponding distinction can be seen in the language of the Road Traffic Regulation Act 1984 between roads and parking places. While there is a difference in the precise terms of the statutory definition in that Act from those in the Act of 1988, there appears to be no difference intended as regards what is meant by the words "any other road to which the public has access." The distinction recognised by Parliament between a road and a parking place can be found in the provisions forming Part IV of the Act of 1984 and the definition of "street parking place" and "offstreet parking place" in section 142. In particular section 57(1)(b) empowers the provision and maintenance of "suitable parking places, otherwise than on roads, for vehicles . . . ."

While a parking place could be on a road, it is nevertheless not itself a road. All the less is there reason to regard a car park as a road

."

 

You can read the full House of Lords Judgement via the link below:

 

Clark vs Kato

[1998] WLR 1647, [1998] 4 All ER 417, [1998] UKHL 36

http://www.bailii.org/uk/cases/UKHL/1998/36.html

Edited April 27, 2015 by TofuMan
To add citation reference

[TofuMan]

Your case was dismissed, but it may not be valid argument in other similar cases, and a different court may not agree.

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.

 

The Clarke v Kato case was a Road Traffic Act matter,

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 Section 192 in the context of a car park or parking area. It is binding on all lower courts to follow their reasoning... apply the 4 tests outlined that determine if it is really part of the road and consider the purpose and function, etc

 

It may not apply to ALL cases and I make no claim that it does - but I know it applies to cases around here!! I am sure it will apply to hundreds, maybe thousands of the 20,000 Section 29 cases they prosecute every year... where people settle out of court by admitting an offence they have not committed.

 

My case tested this - it applied. DVLA lost the case.

[TofuMan]

As far as Sch. 2A, V.E.R.A. is concerned, if the parking spaces were predominantly used by residents and could be used by anyone and there were no restrictions limiting it to residents only, sch.2A would not apply, as for that exemption, the place must be normally enjoyed only by the occupiers of those dwellings.

 

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:

 

"normally enjoyed only by the occupiers of those dwellings"

 

But

 

" normally enjoyed only by the occupiers of those dwellings"

 

As I argued in Court, I and the other residents have friends that visit and occasionally tradesmen that park vehicles there when they do work at the properties. Parliament did not intend to create a clause that if breached by a plumber one day parking his van there would suddenly forfeit the rights of all the residents.

 

The local Council had produced a letter they hoped would convict me, which said that the parking was 'predominantly' used by residents. This was sufficient for Schedule 2A to apply.

 

The DVLA's own internal documents (See the PDFs I uploaded earlier in this thread) tell clampers they cannot clamp a car on land associated with dwellings EVEN IF THE CAR BELONGS TO SOMEONE WHO DOESN'T LIVE THERE. People should download the PDF's if they are likely to go to court and see how the DVLA's own policy documents differ from what they tell you over the phone.

[Raykay]

The Clarke v Kato case concerned an accident in an open car park and the question of 'is a car park considered to be a road within the meaning of the Road Traffic Act 1988'.

 

 

It decided it wasn't, but there can be parking bays on a road (on road parking). Then there is the question of 'is it a Public Road? - not just the carriageway, it can include footways, verges etc. and possibly the parking bays.

 

 

In your case, the DVLA considered it was, you convinced the court it wasn't. But it doesn't set a precedent. Any case will be decided on the particular circumstances.

[Raykay]

That is not correct. Although the DVLA might prefer such a narrow interpretation.

 

 

 

The wording of sch.2A, (1A) (b), Vehicles Excise & Registration Act 1994:

 

 

'Any place which is within the curtilage of, or in the vicinity of, a building consisting entirely (apart from common parts) of two or more dwellings and which is normally enjoyed only by the occupiers of one or more of those dwellings'

[TofuMan]

In your case, the DVLA considered it was, you convinced the court it wasn't. But it doesn't set a precedent. Any case will be decided on the particular circumstances.

 

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 that - it was more of an observation they made in passing.

 

However - I think they were being quite clear this was not limited to car parks - this involved how one distinguishes road from car parking areas.... EVEN when those may be commonly thought of as 'on the road' . I am surprised this ruling is not employed more often!

 

PLEASE NOTE:

 

I have not been 'naive' in my interpretations - I spent 9 months preparing for court! People reading this must remember that you cannot allow 'confirmation bias' to creep in - do not cherry pick the bits that sound good to you and ignore the bits that sound negative towards you... when you read the law try to be objective and ask if it really applies to your situation or not, with a clear mind as if you were dealing with someone else's problem rather than your own.

 

I spent 9 months asking 'how have I broken the law?' and I was given many incorrect reasons, because when I went and read the law I saw that it did not support the claim the DVLA made... when I got hold of the DVLA's internal documents I found they supported MY ARGUMENT rather than their own... so I was being lied to.

 

I have been an advocate in successful Employments Tribunals, I dragged the Home Office through the Ombudsman and won, I have fought lengthy Trade Mark cases and won... I only fight when I am CERTAIN the law is on my side!

 

I am publishing my information to assist others - but anyone reading this with a DVLA issue must appreciate that a 'similar' case may not get a 'similar' outcome.

 

However, the documents I am uploading are useful because I am trying to show people the level of evidence and the quality of reasoning you need to apply to crush the DVLA's arguments. But remember - Your own cases will rest on the facts that can be proven in your own circumstances.

 

The DVLA documents I have uploaded may put many aspects of people's cases beyond discussion - No matter what the DVLA tell you in letter and over the phone... READ THEIR PDFs in this thread... a Judge will pay a lot more attention to something they said in the past, especially where they are interpreting the law and creating policy, to anything they improvise to get you off the phone!

[Raykay]

A complication in the future could be that your defence was based on the case of Clark v Kato, which only considered the application of the term 'road' in respect of a car park. It has the Road Traffic Act definition, which includes the words 'any highway and any other road', but stated the term 'highway' did not apply in that case.

 

 

'Highway' includes footways, verges etc., and if repairable at public expense, may be considered to be a 'Public Road'. It would be a matter for the court in future cases to decide if parking places were part of the highway.

[TofuMan]

A complication in the future could be that your defence was based on the case of Clark v Kato, which only considered the application of the term 'road' in respect of a car park. It has the Road Traffic Act definition, which includes the words 'any highway and any other road', but stated the term 'highway' did not apply in that case.

 

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 WORLD. (sorry thats not 'shouting' but 'maximum emphasis')

 

I know my case is not a 'precedent', (you do not need to repeat that to me again!) However, it is a legal test in Court... the DVLA failure to successfully prosecute me was based on the facts and the law, not a whim of the Court. The court spent almost 2 hours going over the points of law. So the case I put forward should be of value to people in very similar circumstances.

 

For Clark vs Kato to apply people will need to have a case where the DVLA have clamped their car or are threatened for prosecution for being on land that normally they would be able to park in... so readers, PLEASE read the DVLA PDFs where you can see you may leave a SORNed car in a public car park, housing association car park, council car park, private car park, retail car park.... The DVLA's own guidance to staff and contractors addresses all the different places.... If the place is not 'Public Road' they may not take action against you. A place with series of parking bays such as mine was, is a Parking Area that is not on the carriageway and it has been dedicated to parking only by painting bays out over the whole of the area... so it is not a lay-by either (there is precedent that 'lay-by' may be considered Highway')... the DVLA may not clamp there.

 

'Highway' includes footways, verges etc., and if repairable at public expense, may be considered to be a 'Public Road'. It would be a matter for the individual cases if it was considered that parking places were part of the highway.

Unfortunately, due the vagueness of this it is not helpful commentary. Yes - it 'may' be... and 'considered' by whom? The DVLA or a Judge in a Court? In my opinion NOT the DVLA - they may exercise pseudo-police powers by they cannot judge and convict anyone!

 

Of course in the individual cases brought to Court the facts will need to be looked at and if those facts determine your vehicle was in an area normally used as a car park - whether public or private, it was not on a Public Road. Furthermore if that car parking area was ALSO associated with dwellings the DVLA should not have clamped you either.

 

In my case:

- I was NOT on Public Road

- The parking area was ALSO associated with the dwellings.

 

That was proven with evidence rather than frothy interpretations of the law I merely demonstrated that the evidence fit the law and so the relevant law and precedent applied. The DVLA twist words to mean things they do not and I would urge readers to use English as it is normally spoken and not play the DVLA game of 'Magic Words'.

 

The Clark vs Kato ruling also said that where the term 'road' is used alone it should retain its normal meaning and not be extended to include 'any other public place'. If you are talking about a place that is used for parking only and is marked out as such... it is a car park. A car park cannot be a road.

 

I think to really address this in full context of my own case I may have to upload my skeleton argument - it is methodical and goes through each possible obstacle step by step.

 

The wording of sch.2A, (1A) (b), Vehicles Excise & Registration Act 1994:

 

'Any place which is within the curtilage of, or in the vicinity of, a building consisting entirely (apart from common parts) of two or more dwellings and which is normally enjoyed only by the occupiers of one or more of those dwellings'

Correct quote - but we are disagreeing on the emphasis. As I explained the operative word in my opinion (and in my case) was 'NORMALLY'...

 

Of course on occasions other people may park there - but the residents cannot forfeit rights because of that. And as I keep repeating, people should read the DVLA's own internal guidance in the PDF's I have uploaded. Looking at the law alone is fine, but the interpretation for the DVLA policy is in print... in those PDFs.

 

It will not impress the Court if they try and present an argument that directly contradicts their own internal policy documents

Edited April 27, 2015 by TofuMan
Spelling, Clarity of explanation, making it 'friendlier'!

[Raykay]

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 WORLD.

 

 

You did well to concentrate on Clarke v Kato, as it only involved the interpretation of the 'road' part of the definition of a road within the meaning of the Road Traffic Act, and did not discuss the 'highway' part.

 

 

Parking bays, such as where you were parked, may not be considered to be part of the 'road' but may be considered to be part of the 'highway', and if it was repairable at public expense, it would be a part of a Public Road as far as the Vehicles Excise & Registration Act is concerned.

[obiter dictum]

errror

[TofuMan]

You did well to concentrate on Clarke v Kato, as it only involved the interpretation of the 'road' part of the definition of a road within the meaning of the Road Traffic Act, and did not discuss the 'highway' part.

 

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 20 years has not been amended to elaborate further. The DVLA turn to Section 192 of RTA 1998 to try and widen the scope... but this created 2 obstacles for them:

 

1. Clarke vs Kato, which was dealing with a case under RTA, states that when 'road' appears alone it cannot mean more than its normal meaning. (so the detailed possible extensions of 'Highway' in other Acts may not automatically be applied to the interpretation of VERA where we are seeking to clarify only what a 'Road' is.):

 

"I turn next to consider the statutory definition of the word "road" in section 192 of the Act of 1988. In applying the definition the first question to be asked is whether the place in issue is a highway. We are not concerned here with that possibility and it is sufficient to observe that it includes such things as public footpaths and public bridleways. Failing an affirmative answer one then has to proceed to the words which follow; Does the place qualify as being "any other road to which the public has access?" This provision has to be analysed into two parts; first, is it a road?"

 

Well it clearly wasn't a road by any normal understanding of the term... the question about Highway being somehow all inclusive is irrelevant here, unless it is actually a road there is a problem going further... we can't simply see if we can squeeze it into the meaning of 'road' we have to also consider what else it may be... could it be a car park instead?? The DVLA error was to start out assuming you can call things 'Road' and they magically become road... The Lords commentary adresses this:

 

"While there was some discussion in argument before us whether the North Committee had correctly stated the law on the meaning of the word "road" the express addition of the words seems to me to be a clear indication that a conscious extension of the scope of the provisions in question was being made, reinforcing the conclusion that where the word "road" stands alone it bears its ordinary meaning and is not to be extended to public places such as car parks."

 

2. If we want to go shopping through other legislation for definitions, such as RTA 1998 or others we cannot do so without accepting the other implication - which is Roads and Parking are clearly considered separate things through a number of relevant Acts:

 

"The distinction between a road and a car park which is reflected in the ordinary use of words is reinforced by a consideration of the language of the legislation. Section 25 of the 1988 Act which prescribes the offence of tampering with a vehicle starts with the words "If, while a motor vehicle is on a road or on a parking place . . . ." This plain recognition of a distinction between the two things cannot, as was suggested in argument, be put aside as simply a fortuitous anomaly in a consolidation statute, particularly when one finds the same distinction in the earlier appearance of the provision in section 29(2) of the Road Traffic Act 1930. Indeed the recognition of parking places for vehicles as a distinct matter can be found in section 68 of the Public Health Act 1925 where a specific definition of the term is given. A corresponding distinction can be seen in the language of the Road Traffic Regulation Act 1984 between roads and parking places. While there is a difference in the precise terms of the statutory definition in that Act from those in the Act of 1988, there appears to be no difference intended as regards what is meant by the words "any other road to which the public has access." The distinction recognised by Parliament between a road and a parking place can be found in the provisions forming Part IV of the Act of 1984 and the definition of "street parking place" and "off-street parking place" in section 142. In particular section 57(1)(b) empowers the provision and maintenance of "suitable parking places, otherwise than on roads, for vehicles . . . ." While a parking place could be on a road, it is nevertheless not itself a road. All the less is there reason to regard a car park as a road."

 

Clarke vs Kato comments on this issue mean Courts must therefore view Roads and Car Parks as two separate things from the outset. the question then remains simply was the car in one or the other?

 

Parking bays, such as where you were parked, may not be considered to be part of the 'road' but may be considered to be part of the 'highway', and so would be a part of a Public Road as far as the Vehicles Excise & Registration Act is concerned.

 

Not necessarily - as I said it cannot be assumed that the full width of interpretation possible in RTA can be applied to VERA. The reason is that a definition in an Act of Parliament is there to serve that Act alone... it is there to support the interpretation of that Act rather than another Act... hence:

 

"The word "road" is plainly intended to cover all kinds of roads. It embraces not only highways but "any other" roads. So a considerable breadth of meaning is available, provided that the place still qualifies as a "road." But it is argued that a greater breadth should be allowed by way of a purposive construction. If that approach is to be adopted the first step must be to identify the purpose of the legislation."

 

What is the purpose of the Vehicle Excise and Registration Act? Attempting to stretch any definition offered in VERA or available elsewhere must be driven by a NEED that stems from the purpose of VERA rather than the convenience of obtaining an easy conviction for the DVLA prosecutor. So, the words in definitions are there to support that purpose and any stretching of their interpretation must be in pursuit of that purpose not simply to achieve a win in Court. The DVLA mistake was thinking that using 'Magic Words' could transform a 'car park' into a 'lay-by'.

 

" It may be perfectly proper to adopt even a strained construction to enable the object and purpose of legislation to be fulfilled. But it cannot be taken to the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape is transformed into something which is not only significantly different but has a name of its own. This must particularly be so where the language has no evident ambiguity or uncertainty about it."

 

A definition of 'road' cannot be stretched so far that it is used to describe something that has it's own name - like a car park. Especially where legislation already defines that as a separate thing! Such legalistic and cynical attempts to pervert the meaning of readily understandable and unambiguous words failed to impress the Court.

 

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

All quotes from judgement in:

Clark vs Kato

[1998] WLR 1647, [1998] 4 All ER 417, [1998] UKHL 36

http://www.bailii.org/uk/cases/UKHL/1998/36.html

Edited April 27, 2015 by TofuMan
to add reference to legal case

[TofuMan]

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

 

3. The key issue in this case is whether the parking area where my car was located can be legally considered as ‘road’ in order to fulfil the required definition of ‘public road’ under VERA for an offence to have occurred.

 

~ ~ ~ ~

 

5. In my defence I rely principally on the 1998 decision of the House of Lords in ‘Clark and Others v Kato, Smith and General Accident Fire & Life Assurance Corporation Plc’ [1998] WLR 1647, [1998] 4

All ER 417, [1998] UKHL 36, where it was held that a car park was not a road.[1]

 

6. I have provided of copy of the entire decision for the Court to refer to (the Lords reasoning and commentary is valuable in this case) however I shall highlight where the Lords approach and commentary is relevant to my case.

 

7. This judicial precedence creates an onus on the prosecutor to prove beyond all reasonable doubt that the parking space where my car was located is in fact not a car park but a road. With the assistance of dictionary definitions and images I shall detail how the land in question is undoubtedly a ‘car park’, as I have always claimed, by following the principles used by the Lords themselves.

 

~ ~ ~ ~

 

Points of Law

 

27. I am going to follow the same approach used by the House of Lords in their decision. They considered the language of the legislation and language as it is normally understood and carefully evaluated the characteristics of the places involved.

 

28. As the Lords explained in their decision, is not for any Court and certainly not the DVLA to create new effects for laws through the distortion of language or unreasonable interpretations of legislation.

 

29. If the law fails to provide the DVLA with an unambiguous basis to prosecute me, the DVLA should not ask this court to accept a distorted use of language but instead ask Parliament to amend the legislation.

 

~ ~ ~ ~

 

Interpretation of VERA

54. In the first instance VERA should be approached literally. No assumption should be made that words are used erroneously or that words have meanings other than their ordinary meaning.

 

However, if having done that we are unable to find a conclusive outcome, or that the outcome would be absurd, we should consider a broader interpretation based on the purpose of the legislation.

 

55. It is clear that a ‘Public Road’ has to be a ‘road’ for Section 29 of VERA to apply. We therefore need to be able to determine what constitutes a road. The need to look for a definition from other legislation must be driven by a need arising from VERA itself as I am not being prosecuted for alleged offences under any other Act.

 

56. Firstly, I am not convinced we necessarily need to look outside of VERA for a further definition, as VERA contains clear exemptions relating to land associated with a dwelling. I have provided contemporaneous evidence that the parking area was provided over 30 years ago for the purpose of residential parking. [31]

 

57. Additionally we can look at how the DVLA themselves have interpreted VERA in their own internal documents.

 

~ ~ ~ ~

 

89. I hope to convince the Court that the DVLA have therefore sought to rely on an Act where the highest court in the land has determined it cannot apply.

 

90. I call the Court’s attention to the fact that within VERA:

 

• The term ‘road’ appears over 200 times
  
• The term ‘public road’ appears 29 times
  
• The term ‘on a road’ appears 17 times
  
• The term ‘on the road’ appears 4 times
  
• The term ‘highway’ does not appear once in VERA 1994.
  

 

Page 16 of 24

 

91. VERA has been around for 20 years and has been amended many times. Had legislators meant ‘public road’ to mean ‘Highway’ I consider they would have now amended it to say so.

 

92. In contrast, we can compare an example of the wording of the Road Traffic Offenders Act 1988, where Section 4(6) states:

 

“In this section “parking place” means a place where vehicles, or vehicles of any class, may wait and “designated parking place” has the same meaning as in the Road Traffic Regulation Act 1984.”

 

93. This makes it clear that when legislators intend for a definition of a term used to have the same meaning and interpretation as one given in another earlier Act of Parliament, they can make explicit reference to it.

 

94. I argue that the total absence of the term ‘highway’ from VERA, which it should be remembered was created eight years after the 1988 Act and makes no reference to that Act or use of its definitions, indicates that it was not the will of parliament for ‘road’ to mean anything more than its usual common meaning.

 

95. I do not believe that VERA was intended to apply beyond the normal understanding of the word ‘road’, specifically limiting it further to only those roads that are ‘maintained at public expense’ because it should obviously only apply to roads that are paid for by the tax collected.

 

What the Road Traffic Act 1988 says:

 

96. From the outset of my dispute with the DVLA, from July 2014, they have claimed that they could overcome the apparently narrow definition in VERA by relying on Section 192 of the Road Traffic Act, where the definition for road is given as:

 

192 General interpretation of Act.

“Road”

a) in relation to England and Wales, means any highway and any other road to which the public has access, and includes bridges over which a road passes

 

97. The DVLA and their contractors repeated the bold, yet obviously erroneous assertion to me, that anywhere that was open to the public could be a ‘road’ and therefore even parking spaces could be a road if they were open to the public. That is nonsense and has no basis in law.

 

98. As I have stated and as the Lords also observed, the definitions provided in the Road Traffic Act are intended for that Act alone. Its definitions, which are required to cover a variety of offences which require a broader definition of ‘road’, such as drink driving, parking on grass verges and central reservations are intended to serve the purposes of the Act. The stretching of the definition to include places ‘to which the public has access’ is intended under that Act to deal with dangerous

 

39 Exhibit DE38 Road Traffic Offenders Act 1988 Section 4(6)

 

Page 17 of 24

 

driving where the definition of ‘road’ or ‘highway’ might not readily apply.

 

99. I also point out that surprisingly, the 1988 Act is so well drafted and precise that it encompasses offences as obscure as:

 

- holding onto a moving bus while it pulls you on rollerskates

- flying a hovercraft on common land, unless saving a life

- giving a false name after being stopped for inconsiderate cycling

- allowing your dog on the road without a lead, unless you are driving sheep to market

 

100. All of those possible offences can be clearly and unambiguously identified in the provisions of the Act.

 

101. However the DVLA prefer to rely on the definition in the 1988 Act not because it is more precise but because the term ‘highway’ is less precise and therefore open to broader interpretations or even manipulation. It is because offences under the 1988 Act can include places that are not normally considered part of the road in the everyday sense of the word, that the DVLA wish to employ it in prosecuting me.

 

102. I think there is something rather sinister about a Government Agency that is empowered to prosecute me for the alleged offence under VERA trying to make use of a vaguer term from other legislation to obtain a conviction that would otherwise not be possible. That cannot have been the intention of Parliament and in my view the DVLA are attempting to gain and exercise powers they have not formally been granted by law.

 

103. Nonetheless, in ‘Clarke vs Kato’, Lord Clyde also accepted that the Road Traffic Act was an acceptable source for a definition of ‘road’, primarily because of the nature of the cases they were reviewing were based on that 1988 Act.

 

104. He admitted that the definition was broad for the specific purpose of prosecuting the wide range of offences under that Act. It does not follow that the definition given in Section 192 of that act can be assumed to safely apply with respect to the purpose of any other Act.

 

105. The second problem with the DVLA seeking a definition in RTA 1988 is that, as pointed out in ‘Clarke vs Kato’ that the RTA 1988 makes explicit use of the term ‘parking place’ as being distinctly separate to a ‘road’ in Section 25 where it reads:

 

25 Tampering with motor vehicles.

If, while a motor vehicle is on a road or on a parking place provided by a local authority, a

 

person—

 

(a) gets on to the vehicle, or

 

(b) tampers with the brake or other part of its mechanism, without lawful authority or reasonable cause he is guilty of an offence.

 

(Incidentally I consider that this is a criminal offence that the DVLA have committed against me.)

 

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

 

I think it may help people more if perhaps I posted the full Skeleton Argument and Exhibits as they will make more sense... the case in my defence was slowly built up on a series of indisputable facts to get to the point where there is no room for the DVLA to wiggle...

 

If anyone reading this thread would like to see it - just shout out!!

Edited April 27, 2015 by TofuMan
Better explanatory text, formatting

[TofuMan]

errror

 

How does it go..?? 'To err is human but...' to really mess up you have to employ mindless dogmatic cowards. Something like that

[Raykay]

A good submission, and obviously you did a lot of research, but one case on appeal involving keeping an unlicensed vehicle on a grass verge, just shows that you can have the opposite result - that the extent of a Public Road within the meaning of the Vehicles Excise & Registration Act 1994 is 'fence to fence'. Which may be where the term 'including footways, verges etc' comes from.

 

In paragraph 14 - 'In deciding that issue, it was not necessary for the Justices to apply any presumption, if indeed that is what they did, to the effect that fencing on both sides of the highway was prima facie evidence of its extent: see Offin v Rochford Rural District Council [1906] 1 CH 342; Attorney General v Baynon [1971] 1 CH.'

 

 

http://swarb.co.uk/alun-griffiths-contractors-ltd-v-driver-and-vehicle-licensing-agency-admn-20-oct-2009/

[TofuMan]

...one case on appeal involving keeping an unlicensed vehicle on a grass verge, just shows that you can have the opposite result - that the extent of a Public Road within the meaning of the Vehicles Excise & Registration Act 1994 is 'fence to fence'. Which may be where the term 'including footways, verges etc' comes from.

 

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 to take that to court - they did - and the critical fact seems to be that the land while couldn't be used as road, the crash barriers were only a safety feature and not a boundary. Also the land was not dedicated to any other specific purpose, such as parking - unlike my situation - so was considered verge and therefore part of the road.

 

Similarly, people have been prosecuted for parking 'the other side' of yellow lines... which is a misunderstanding of what they represent as the effect of the yellow lines, while they may be painted on the carriageway, actually extends to the edge of the highway - usually the nearest boundary.

 

Anyways - in my case, the area in question is surrounded by places that do form part of the 'highway' - it has the carriageway of the 'road' itself, lined with grass verges, pavements and green open spaces. All of those are maintained at public expense... although not all from vehicle duty I am sure. As 'adopted highway' - the highways agency are apparently responsible for maintaining it, but they seem to subcontract the local council for cutting the grass and road sweeping etc... it all seems a bit confusing in determining who does what and therefore who 'owns' what.

 

The day I saw my car was clamped I went to Police to ask if it was lawful. After explaining it's location they actually said probably not!! The duty officer showed me a website provided by West Yorkshire Police that Hampshire Police can use - when he searched for 'definition of a road' he found a page which detailed how Clark vs Kato applied which he said was definitive for policing purposes in deciding if an offence happened on the road or not. He kindly printed that out and I went home to read the case carefully.

 

So, having swotted up and laid out my case - when the DVLA responded to my first complaint they included what I refer to as the Pink Map - where adopted highway is shown in pink.

 

The guys that make the maps of adopted highway had clearly coloured everything that was not private property in pink, obviously assuming it was all maintained by Hampshire Highways. In doing so they coloured in areas that were clearly not roads... although they may be maintained by them, such as the parking court at the rear of my property. Had I parked there I am sure they would have clamped too - but it is definitely not possible to call it a road or highway. The reason folks do not park there is the total lack of lighting which has led to vandalism in the past.

 

Now that parking court area was an interesting anomaly - it showed that for the purposes of maintenance and perhaps some other liabilities (trimming vegetation) Hampshire Highways were considered responsible... but at the same time it could not possibly be viewed as highway - it fails EVERY test you could imagine applying. Could it in fact be BOTH maintained at 'public expense' and NOT a 'road'? This made me dig a lot deeper in my own research and to find that Clark vs Kato was going to be critical in my case.

 

Now I had always assumed on my basic knowledge of such things, the parking area I was in should be ok - but I didn't know exactly why. I knew from my days as a teacher when I had a bump in the college minibus that there was a big fuss about insurance issues because it was 'not a road' as far as the insurance policy was concerned... interestingly was shortly after the Lords' ruling, but I knew nothing of that back then.

 

Now I know that regardless of who owns the land or how it is maintained, the parking court and the area of land that I had parked on is not road for the purposes of RTA and to the extent that VERA derives definitions from RTA it is not a road under VERA either.

 

This parking area is maintained by public funds... but then, so are all council car parks. That is not enough to turn it into a road.

 

The council I think is hoping to keep the notion going that these are 'lay-bys' afloat for their own convenience - but they will be easy to challenge. They like the fact that calling them lay-bys means they can prosecute against cars that being advertised for sale on the roadside. Its a legitimate aim but they shouldn't pervert the law in pursuit of it...

 

Take for example that they install disabled parking bays in these 'lay-bys'... I have photos of SINGLE car bays that are totally dedicated to a disabled bay. To get a disabled parking bay you have to apply to the council and they will put one as close as they can to your house. And this makes it associated with a dwelling - especially where it is a single disabled bay on its own as no one else is likely to use it.

 

Now if you can keep a car in a disabled parking bay, day in and day out with no problems... what happens if you put a piece of paper in the window with some numbers on?? I'll tell you what happens - Magic Words come into effect and now the same car in the same place it always sits is suddenly now 'obstructing the highway'.

 

If that seems odd - I would argue its not the real world that is at fault - its the application of legislation that is probably wrong.

[Raykay]

Now I know that regardless of who owns the land or how it is maintained, the parking court and the area of land that I had parked on is not road for the purposes of RTA and to the extent that VERA derives definitions from RTA it is not a road under VERA either.

 

 

 

Where you were parked may be considered to be a road within the meaning of the RTA definition of a Road - 'any highway and any other road to which the public has access' - eg. part of a highway, not just the 'road' part (which is what Clark v Kato was about).

 

 

But irrespective of the RTA definition, it could still be a part of a Public Road within the meaning of VERA, which is from fence to fence.

[BIGGER BILL]

In my experience there is a culture of telling lies at the DVLA they will even knowingly tell lies to a court of law and as far as the law is concerned one Manager yelled at me "WE DECIDE WHAT THE LAW IS NOT THE POLICE OR THE COURTS".

[TofuMan]

Where you were parked may be considered to be a road within the meaning of the RTA definition of a Road - 'any highway and any other road to which the public has access' - eg. part of a highway, not just the 'road' part (which is what Clark v Kato was about).

 

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... certainly the DVLA and NSL cannot. (They have the additional problem of not understanding the Finance Act 2008 properly, presuming it gives them God like powers)

 

Where I parked was 'considered' by a Court, with full regard to both the definitions in VERA and RTA, who determined without any caveats that it was not part of the road. They even held up a photo of the car in the parking space and said to the DVLA prosecutor "This is NOT a road". The seemed pretty sure about it

 

The reason: because it cannot be a road. It is a parking area ('Car Park')- and therefore cannot be regarded as part of the road because judicial precedence (Clark vs Kato) has laid down that parking areas cannot be considered 'road'.

 

But irrespective of the RTA definition, it could still be a part of a Public Road within the meaning of VERA, which is from fence to fence.

 

VERA does not make any such definition - which is part of the problem - it merely says 'Public Road' and in the first instance it must be a 'road' (it makes no use of 'highway').

 

Then the extent to which places may be considered part of the road by a Court will probably be drawn from Section 192 definition in RTA. In many cases the fact there is 'road' is indisputable and the RTA definition will allow the definition to include the pavements and verges, which will in most cases encompass everything from 'fence to fence'. But not in every case.

 

This issue arises that occasionally, some pieces of land may exist between the furthest boundaries of the highway that are not road. I can think of many examples, such as in London the small private gardens which are not highway and sit between the far edges of the highway where it reaches the boundaries of private property. These are usually fenced and cannot be driven through and therefore cannot be part of the highway, even if they are council owned... Also access to underground toilets, which I have seen in London and Manchester, which are situated in the middle of a road. these cannot be driven over and therefore cannot be a road. Phone boxes on the pavement and grass verges... are they part of the highway too? Obviously not - these small patches of ground have been dedicated to a purpose OTHER than a road/highway, stop functioning as a place that can be used as highway and therefore cease to be any kind of 'road'.

 

In my case the land in question was put to another purpose over 30 years ago... it was turned from pavement and verge into a parking area. It is a council owned car park, created for the residents of my road (as the council wrote in letters I presented the court from 1980s).

 

So where Section 29 offences in VERA are concerned the land in question will ALWAYS have to be a 'road' to apply - and in the majority of cases it may be so, by extending the definition with Section 192 RTA. However... I am certain there are cases like mine, where the assumption has been made that a piece of land that is between the furthest edges of the 'highway' is presumed to therefore qualify as road, but is not road.

 

I was certain about this - but the DVLA were incapable of understanding the concept that right in the middle of a 'highway' there are pieces of land that cannot form part of a road - because of their purpose and characteristics do not allow them to be used as road.

 

Ultimately, whether it is a 'road' or not must always be determined by examining the facts in Court, applying the 4 tests laid out in Clarke vs Kato. This piece of land failed those tests. Furthermore by relying on the RTA for a broader interpretation of 'Road' the DVLA then became exposed to the fact that RTA itself speaks of 'parking places' as separate to 'roads', even going so far to describe a 'parking place provided by a local authority' (like the one my car was in!).

 

25 Tampering with motor vehicles.

 

If, while a motor vehicle is on a road or on a parking place provided by a local authority, a person—

(a) gets on to the vehicle, or

 

(b) tampers with the brake or other part of its mechanism,

 

without lawful authority or reasonable cause he is guilty of an offence.

 

Ref: http://www.legislation.gov.uk/ukpga/1988/52/section/25

 

If I was in a 'local authority parking place' - or any other type of car park - Clark vs Kato applies. The DVLA 's reliance on Section 192 of RTA ensured that Clark vs Kato became the decisive issue in the case - and that is a judgement from the highest court in the land (at the time) which is binding on all lower courts.

 

All I had to do was persuade the court the car park I was parked in - was a car park!

 

I am still amazed the DVLA thought they had any chance of winning.

 

I should maybe upload some of the exhibits I presented the court which would show what an easy argument it is to show a parking area is a car park and not a road ...or a lay-by!

[TofuMan]

In my experience there is a culture of telling lies at the DVLA they will even knowingly tell lies to a court of law and as far as the law is concerned one Manager yelled at me "WE DECIDE WHAT THE LAW IS NOT THE POLICE OR THE COURTS".

 

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 justifiable on many grounds. It is the "21st Century equivalent of quill and ink" as one Judge I met once put it when I was presenting some very damning recorded evidence against a bunch of (alleged) racists in an Employment Tribunal, where I was an unpaid advocate. I just love taking on bullies!

 

Anyway, I usually tell people I am recording them, partly out of courtesy and partly because they tend to stick to the facts when they know... but this led to DVLA staff slamming the phone down (Hello RICHARD at wheel clamping!!)

 

You can prevent this evasiveness by not disclosing that you are recording... You really do not need to, ESPECIALLY once their system has stated "this call may be recorded for security and training purposes". You're bloody right it will be!

 

In actuality when I asked them if the call was really being recorded by the DVLA they always said the calls were not recorded. When I requested all my personal data I included voice recordings and did not receive any. I think they try to scare folks into thinking they better not lie as they are "being recorded" but actually do not record conversations so you cannot prove you have been lied to/given false information/insulted (delete as appropriate).

 

Personally, I record ALL calls with ALL government agencies and normally request correspondence in writing rather than calls... no matter who. Simply because over the last decade I have been lied to so much by people who are largely unaccountable. (UKBA and Home Office were unbelievably incompetent and dishonest - even destroying evidence!) People like these in Govt Agencies will deny everything they say... unless you can prove it. In doing so you prove not only you are telling the truth - but they are a cowardly incompetent liar exploiting an abuse of power

 

After all, what is 'power' if you cannot exercise it?! I have observed if you give a man a whistle he will blow it all day long... giving a little nobody from some crappy town the 'power' to wreak bloody havoc in the life of others results in ...well The Parliamentary Ombudsman call it 'Maladministration'.

Edited April 28, 2015 by TofuMan
Spelling

[TofuMan]

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.

[Bazooka Boo]

Oh yes, unless of course their apology is in the post?

[Raykay]

I should maybe upload some of the exhibits I presented the court which would show what an easy argument it is to show a parking area is a car park and not a road ...or a lay-by!

 

 

I know you won your case, but anyone taking your advice needs to be very, very, very, careful - just a few problems:

 

 

The Clarke V Kato case was about the definition of a 'Road', within the meaning of the Road Traffic Act 1988,only in relation to an off road car park.

 

 

On Road parking bays can be a different matter, if the road they are on is considered to be a Public Road - a road repairable at public expense - that Public Road extends from the boundary on one side right across to the boundary on the other side, and includes footways, verges and the parking bays.

 

 

The definition of a 'Road' in the Road Traffic Act 1988 does not include the words 'other public place'.

 

 

There is no connection between the definition of a 'Road' within the meaning of the Road Traffic Act 1988, and the definition of a 'Public Road' within the meaning of the Vehicles Excise & Registration Act 1994. They are completely different legislation.

[TofuMan]

I know you won your case, but anyone taking your advice needs to be very, very, very, careful...

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 question if they really have a case to argue.

 

My case was of a SORNed car, in a parking area that I knew for a fact had been installed in the 1980s for residents to use. Unless you are in pretty much exactly the same situation - my case is unlikely to help you. (Although you may enjoy reading the story!)

 

I fought and won MY case, not anyone else's and I make no claim that I can save anyone else from a conviction... Everyone reading this needs to understand two things:

 

1. My situation was very specific. The DVLA had nothing to prosecute with except the power to force me go to court... ultimately they only had a photo of my car and a map that was highly questionable which was not eventually used and a dodgy letter from the council (created AFTER the pre-trial hearing) claiming the car parking was a lay-by. They tried to rely on the power of Magic Words.

 

2. In the year 2013-2014, the DVLA launched 21,863 prosecutions for Section 29 cases.

- They withdrew 1,639 (7.5%) before trial.

- they lost 99 (0.45%) cases.

- The DVLA do not often lose!

 

BUT - No one will ever know how many people were intimidated to settle Out of Court for offences they did not actually commit.

 

I was innocent. I am here to provide as much material as I can that may help another innocent person.

 

BUT - I was one of around only 0.5% of cases where the Court decide the DVLA made a mistake.

 

It is no good people simply disputing whether a road is a road just because they do not like the DVLA clamping their car. They really need to be certain that no one would normally consider the place as a road of any kind. Only if that is the case should anyone start trying to see if my case may help.

 

At the pre-trial hearing in my case, it was agreed by the Court that the 'point of law' on which the whole case would rest is whether the land my car was parked on amounted to 'Public Road'. I argued it was a car park and the DVLA argued it was public road - their argument relied on Section 192 RTA definition of road applying. Only a Court could finally decide who was right.

 

This was sufficiently similar to allow the precedent to apply because Clark vs Kato dealt specifically with the question of whether a place was a road or a car park.

 

My evidence and my comments on the points of law are based only on that issue - because it was pretty much the whole case

 

I am also explaining - aside from the points of law in my own case, how you fight back against a institutionally dishonest, disorganised and secretive Govt Agency. (I will make a post specifically about obtaining data and documents from such organisations when in this kind of dispute)

 

By using the Data Protection Act and the Freedom of Information Act I was able to obtain very relevant documents that the DVLA would never have willingly let me see (See PDFs). So, we can look at the law and look at the facts AND the DVLA's own internal documents. If, as in my case, the facts support you, the law supports you and EVEN THE DVLA DOCUMENTS support you - then consider HOW to fight, because only a Court can ultimately decide - the DVLA do get it wrong sometimes.

 

While my case was based on a specific point of law, no one can really say if it was very unusual or not because the DVLA claim they do not keep any records of WHY they lose cases... However you, dear reader, will know. You will know if you are in a 'car park'... it will be quite evident. If you think you are, then READ the PDF files I uploaded earlier very, very carefully... they are INTERNAL DVLA documents, especially the wheel clampers' operating instructions. Then read Clarke vs Kato very, very carefully. It is important you understand it - follow their reasoning and assess your situation in the same way they do.

 

If, as in my case the DVLA start quoting Section 192 as a definition of 'Road' (They did this instantly with me, so I think its common practice) then my case may help you in preparing to defend against their manipulative usage of the RTA definitions.

 

... - just a few problems:

 

The Clarke V Kato case was about the definition of a 'Road', within the meaning of the Road Traffic Act 1988,only in relation to an off road car park.

 

No this is a House of Lords ruling - they are never so narrow as to only limit themselves to one case - by the time cases reach the highest court of the land there is usually a question of law that needs clarification because no suitable case law exists to determine the correct outcome (or interpretation of legislation). They create precedent not only by determining the outcome of the case before them but also by creating precedent in the principles that apply - so inferior Courts should also follow the principles in the same way. My use of the precedent was to make the Court follow the same analytical process and apply the same reasoning as the Lords, which left them with no alternative but to find in my favour.

 

The Lords' did not create any distinction about 'off road' car parks in their reasoning. The case went further than that, it addressed car parks in a broader sense - they were clarifying the law generally about whether a car park can be a road, or vice versa, not simply ruling on one single case. It dealt with whether any car park could be considered a road based on normal use of language and the language of legislation. It did determine that one of the car parks probably contained a 'road' within it - but the parking bays could not themselves be considered road.

 

Clarke vs Kato dealt with two conjoined cases that had gone through all the appeal courts... both involved accidents in car parks (one open, one multi storey - which makes no difference). The case arose because the people who had accidents wanted to make claims on their insurance... but the insurance companies would not pay claiming it was not a road and not covered by insurance. Cases were won lost and appealed and eventually made their way to the Lords for a final decision and to clarify the law.

 

It was relevant in my case because they made a VERY CLEAR ruling that car parks cannot be a road and WHY. That brings me to Raykay's next point - can a parking bay that is 'on a road' be considered part of the road or not?:

 

On Road parking bays can be a different matter, if the road they are on is considered to be a Public Road - a road repairable at public expense - that Public Road extends from the boundary on one side right across to the boundary on the other side, and includes footways, verges and the parking bays.

 

The Lords explained that in a number of pieces of legislation there is a consistent differentiation between 'road' and 'parking'. They rattled off a list of Acts that clearly show parking and roads as being separate and then the Lords the gave this reasoning - with my emphasis:

 

"The distinction recognised by Parliament between a road and a parking place can be found in the provisions forming Part IV of the Act of 1984 and the definition of "street parking place" and "off-street parking place" in section 142. In particular section 57(1)(b) empowers the provision and maintenance of "suitable parking places, otherwise than on roads, for vehicles . . . ."

While a parking place could be on a road, it is nevertheless not itself a road

. All the less is there reason to regard a car park as a road.

 

A more formidable argument for the appellants in my view lies in the fact that the legislation is in certain sections expressly made to apply not simply to "a road" but to "

a road or other public place

." These added words appeared in section 15(1) of the Road Traffic Act 1930 in relation to the offence of driving a motor vehicle when under the influence of drink or drugs. Following on the report of the North Committee in April 1988 these added words were introduced by sections 1 and 2 of the Road Traffic Act 1991 into the first three sections of the Act of 1988 which prescribe certain serious driving offences. While there was some discussion in argument before us whether the North Committee had correctly stated the law on the meaning of the word "road" the express addition of the words seems to me to be a clear indication that a conscious extension of the scope of the provisions in question was being made, reinforcing the conclusion that

where the word "road" stands alone it bears its ordinary meaning and is not to be extended to public places such as car parks

."

 

I argued that because VERA only defines 'Public Road' as a 'Road' maintained at public expense (NOT highway) that the word 'road' only bears it's ordinary meaning, and is not to be extended to public places such as car parks.

 

Of course the DVLA would argue that the 'ordinary meaning' of 'road' is defined by Section 192 of RTA.

 

The definition of a 'Road' in the Road Traffic Act 1988 does not include the words 'other public place'.

 

See above.

 

My reference to 'other public place' does not relate to any confusion in my understanding of the law, but the DVLA/NSL's confusion... they quote such phrases without really knowing where they come from. A number of DVLA and NSL staff told me they can clamp "anywhere the public has access" and in "any public place" which is plainly absurd (and not even part of their own guidance - see PDFs). I am repeating the Section 192 definition again below with my emphasis:

 

Section 192 of the Road Traffic Act:

"road"

(a)F3 , in relation to England and Wales, means any highway and

any other road to which the public has access

, and includes bridges over which a road passes ,

Ref:

http://www.legislation.gov.uk/ukpga/1988/52/section/192

 

The wording 'other public place' runs through the Road Traffic Act... as in here with regard to drink driving:

5 Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit.

 

(1) If a person—

(a) drives or attempts to drive a motor vehicle on a road or other public place, or

(b) is in charge of a motor vehicle on a road or other public place,after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.

Ref:

http://www.legislation.gov.uk/ukpga/1988/52/section/5

 

This is for obvious reasons, you want to be able to prosecute someone who is drink driving around a sports field regardless of the fact it is not a 'road', so 'other public place' appears to allow prosecutions beyond the road itself.

 

I think the DVLA/NSL confuse that language with the amendments made to VERA by the Finance Act 2008 where is says:

"In sub-paragraph (1), for “on a public road” substitute “

in any place other than a place to which this Schedule does not apply

". "

"In sub-paragraph (1)(a)(i), for “on a public road” substitute “

in any place other than a place to which this Schedule does not apply

"."

Ref: http://www.legislation.gov.uk/ukpga/2008/9/schedule/45

 

Which may be why some DVLA staff claim they can clamp 'anywhere'.

 

There is no connection between the definition of a 'Road' within the meaning of the Road Traffic Act 1988, and the definition of a 'Public Road' within the meaning of the Vehicles Excise & Registration Act 1994. They are completely different legislation.

 

I argued that point too! I was not happy with the DVLA trying to use a definition from RTA when the alleged offence I was being prosecuted for was under VERA! However, if the definition in VERA is insufficient to lead to a clear answer a Court may rely on definitions given elsewhere or relevant precedents. As I said earlier, the DVLA argue the 'normal meaning' of 'road' is defined in Section 192 of RTA.

 

I had two key defences:

 

1. Under VERA, Schedule 2A - the parking area my car was in should be exempt from clamping as it is 'associated with a dwelling' and IS 'normally' only used by the residents. Clamping is a separate matter legally to the offence under Section 29, but Schedule 2A is underpinned by the principle that such places ARE NOT PUBLIC ROAD... the DVLA's internal documents (See my PDFs, in particular the 'flow chart') refer to them as "beyond the public road". Therefore, if these are beyond the 'public road' these are places where a Section 29 offence cannot have occurred. The Court agreed.

 

2. The DVLA's insistence that they could reach for Section 192 of RTA to provide a definition invoked the Clark vs Kato precedent to determine if I was in a 'car park' or a 'road' as these are separate things. The Court agreed I was in a car park.

 

Clark vs Kato was not limited to only interpreting the Road Traffic Act, although the cases they addresses fell under that act, because the Lords dealt with the meaning of the word 'road' more broadly than just the RTA, looking through a swathe of legislation and even evaluated the relevance of European Directives. The Lords were seeking to clarify the law in regards to defining what legally constitutes a road and if that was applicable to car parks. However, as the DVLA wanted to rely on RTA this case became very relevant to my own. The Lords' commentary includes (with my emphasis):

 

"The word "road" is plainly intended to cover all kinds of roads. It embraces not only highways but "any other" roads. So a considerable breadth of meaning is available,

provided that the place still qualifies as a "road."

"

 

So while the term 'road' can include what has been settled in case law as constituting 'highway' including pavements and verges, etc, it does not automatically apply to anything that is not actually a road. They had already stated car parks and parking bays are separate things in other legislation and cannot be road.

 

If the DVLA wanted to rely on the RTA to provide definitions - they could not avoid the fact that in Section 25 of RTA, regarding tampering with a vehicle the wording states (with my emphasis):

 

"...If, while a motor vehicle is on a

road

or

on a parking place provided by a local authority

, a person..."

Ref:

http://www.legislation.gov.uk/ukpga/1988/52/section/25

 

It is explicitly clear the 'road' and the 'parking place provided by a local authority' are two separate things. My car was in a parking bay, in a row of parking bays, installed by the local authority (I had proof from letters dating back 30 years to prove that fact).

 

The Lords' went on to say:

 

I turn next to consider the statutory definition of the word "road" in section 192 of the Act of 1988. In applying the definition the first question to be asked is whether the place in issue is a highway. We are not concerned here with that possibility and it is sufficient to observe that it includes such things as public footpaths and public bridleways. Failing an affirmative answer one then has to proceed to the words which follow; Does the place qualify as being "any other road to which the public has access?" This provision has to be analysed into two parts; first, is it a road? and second, if so, is it a road to which the public has access? In the present case we are not concerned with the matter of public access, but two observations on that phrase may be made. The first is that the element of public access has to be tested by reference to facts as well as rights. The question in this context is whether the public actually and legally have access. As the Lord Justice-General (Clyde) observed in Harrison v. Hill 1932 J.C. 13, 16:

 

"There must be, as matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed--that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs."

 

Lord Sands observed in the same case at p. 17:

 

"Any road may be regarded as a road to which the public have access upon which members of the public are to be found who have not obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied."

 

Secondly, the public in this context means the general public. To quote again from the opinion of the Lord Justice-General in Harrison v. Hill at p. 16

 

"I think that, when the statute speaks of 'the public' in this connection, what is meant is the public generally, and not the special class of members of the public who have occasion for business or social purposes to go the farmhouse or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways."

 

It is important to observe that the consideration of access by the public only arises if the place is a road.

It may well be that the public has access to it but that is not enough. As was recognised in Griffin v. Squires [1958] 1 W.L.R. 1106 it has also to be a road.

In Oxford v. Austin [1981] R.T.R. 416, 418 Kilner Brown J. referred to a road as "a definable way between two points over which vehicles could pass

."

 

So for a Section 29 offence to have occurred under VERA, firstly the place must be a road! It is not relevant that the public may have access - as the DVLA kept saying it did. Public accessibility doesn't on it's own define a place as a road (nor whether it is exempt under Schedule 2A, it doesn't need to be 'private land' and could be walked or driven over - public access is not the issue in Schedule 2A.)

 

"...it is argued that a greater breadth should be allowed by way of a purposive construction. If that approach is to be adopted the first step must be to identify the purpose of the legislation. The purpose of the Act of 1988 is stated as a consolidating Act so that little assistance is obtained from the title. Certainly the purpose is to achieve some greater public protection. That was recognised in Harrison v. Hill [1932] J.C. 13 in relation to the construction of the words "to which the public has access" in the Road Traffic Act 1930. But in the present context a more precise definition of the purpose is required."

 

"The question is what is the danger from which the public are to be protected. Is it the use of vehicles on roads, or is it more widely the use of vehicles? If it is the former then one is left with no guidance for a purposive construction. If the purpose of the Act is to protect persons on roads then one is still left with the problem of defining a road... "

 

This is important. If you want to apply the widest possible definition of 'road' it must be only in pursuit of the purpose of the legislation - e.g. to prosecute drunk drivers in order to protect the public. The relevance to VERA is that stretching the definition of 'Public Road' is only acceptable if it is pursuit of collecting tax from those USING the Public Road. There is no legitimate purpose in pursuing people who are not using Public Road...

 

"...It may also be noted that in section 34 of the Act of 1988 the driving of motor vehicles on any land elsewhere than on roads is prohibited. By giving a purposive construction to the word "road" what is meant is a strained construction, beyond the literal meaning of the word or beyond what the word would mean in ordinary usage, sufficient to satisfy that expression of the purpose of the legislation.

 

It may be perfectly proper to adopt even a strained construction to enable the object and purpose of legislation to be fulfilled.

But it cannot be taken to the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape is transformed into something which is not only significantly different but has a name of its own.

This must particularly be so where the language has no evident ambiguity or uncertainty about it."

 

Well - as the Lords pointed out 'Car Parks', 'Parking Areas', 'Parking Places' and 'Parking Bays' have their own name not only in 'normal usage' of the language but also in many other Acts of Parliament. Therefore the Lords reasoned the definition of Road could not be stretched so far as to include these places.

 

In their conclusions they stated (with my emphasis):

 

"If one has recourse to the ordinary use of language I do not consider that either of these car parks would be regarded as a road or as a part of a road. They seem on the contrary to be places to which a road may lead. They are not places designed or dedicated for the passage of vehicles. Neither in character nor function do either of the car parks in the present appeals readily qualify as roads."

 

"In each case the function of the place was for the parking of vehicles. Nor does it seem to me to accord with the ordinary use of language to describe the passage and the car park in the case of Clarke as constituting a road. While a route useable by pedestrians or even bicycles may be identified across the park and through the passage it seems to me that cannot suffice to make the car park a road."

 

"Even if the carriageway should be treated as a road, the bays must retain their own integrity and it was while the car was in a parking bay, not on the carriageway, that the incident occurred."

 

Sorry DVLA, you lost... as I said you would. If you do not like the law, do not try to pervert our language, play word games with the public who pay for your miserable service and make empty threats of convictions - petition Parliament to rationalise the definitions in the Legislation. As the Lord's suggested:

 

"......it must be for the Legislature to decide as matter of policy whether a remedy should be provided in such cases as these, and more particularly it must be for the Legislature to decide, if an alteration of the law is to be made, precisely how that alteration ought to be achieved."

 

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References for folks unfamiliar with the subject:

House of Lords - Clarke vs Kato: http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd981022/clarke01.htm

Precedence (also referred to as a judicial precedent): http://en.wikipedia.org/wiki/Precedent

[Raykay]

A complication is that although Clarke v Kato was in respect of the definition of a 'Road', a later Appeal Court ruling, - Alun Grffiths Ltd v DVLA, was that the definition of a 'Public Road', a road repairable at public expense, was from boundary to boundary. So across a road you could have:

 

 

Boundary-Verge-Parking Bay-Carriageway-Parking Bay-Verge-Footpath-Boundary

 

 

Your interpretation of The Clarke v Kato decision is that only the 'Carriageway' part is considered to be a 'Road', within the meaning of the Road Traffic Act 1998, and so only that part is relevant to the Vehicles Excise & Registration Act 1994.

 

 

In the later Appeal court decision of Alun Griffiths Ltd v DVLA, the court decided that the definition of a 'Public Road' was from Boundary to Boundary, so if all of the land that comprises the Footpaths, Verges, Parking Bays and Carriageway is repairable at public expense, they are all part of a 'Public Road', within the meaning of the Vehicles Excise & Registration Act 1994'.

 

 

In the pictures in post 22, the local authority claim that the pink area is 'Public Highway', if it is repairable at their (public) expense, by the decision of the Alun Griffiths v - DVLA case , it is all considered to be part of a 'Public Road', which would not be a valid place to keep a car that was SORN.