WIN against the DVLA in Southampton Magistrates

[silverfox1961]

I just wanted to comment on this thread and not the content.

 

Raykay and Tofuman, you have done this forum a credit in the way your interactions have been conducted. You have both disagreed with each other many times on this thread but done in a way that shows respect for others opinions.

 

I just wish other threads were as positive as this one.

 

Well done to the pair of you.

[SabreSheep]

I agree.

Excellent example of civilised debate, one form which I am learning a lot from

 

Thank you both

[TofuMan]

You have both disagreed with each other many times on this thread but done in a way that shows respect for others opinions.

 

Thank you, Silverfox. I think we both appreciate that many people now and in the years to come, will visit this site in a rather desperate need for help and advice. The last thing folks need is to see people simply bickering and getting personal. I think we are both mainly concerned to get to the truth and how the law should function rather than 'win' an argument.

 

For my part I want to try and leave behind a thread that will hopefully help a few people who are struggling to deal with the DVLA in this particular situation - and Raykay's challenges are actually helpful in that regard ... he is a more formidable opponent than the DVLA's Prosecutor!

[SabreSheep]

Don't give them ideas, Someone might receive a job offer

[TofuMan]

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

 

Yes. I think in most instances a Court would agree with that, where there is parking on the 'road' itself... where for example the carriageway surface has been painted with bays. (Despite the Lords saying once you mark out a bay that stops being a road! That specific point needs testing in Court)

 

That is the reason I parked where I did - I considered the parking along the carriageway itself to be 'public road'.

 

I think that this might be an erroneous approach where dealing with a piece of land that was constructed specifically for parking. Because then the land in question was created with a purpose other than being part of a highway.

 

In my case the pavement and verge had been ripped up, resurfaced with new edge stones placed all around and bays marked out on them. These are in clusters of 8-12 parking bays at a time on my road - and in many cases have a small fence all around them so people cannot drive up onto the grassed open spaces... this fence is an important feature (missing on my particular parking area) as the fence in those examples physically stops people being able to use the verges as a road - you cannot drive along them. That also implies the areas are not intended to be used as part of a 'highway' by cars at least. Many grey areas there.

 

Of course it is essential that I emphasise that I also had letters from the 1980s where the Council describe it as a parking facility for the residents.

(Readers: check your local councils planning archives if any land is in question - don't reply only on Highway Agency & DVLA. Historical documents carry a lot of weight in Court)

 

So, I my case I was effectively arguing arguing it was:

 

Boundary - Pavement - Street Parking - Carriageway - Car Park - Open Green Space - 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.

 

No I argued the two definitions in each Act are presented ONLY to assist in the interpretation of the applicability and offences created in each respective Act. So that definitions in VERA are given for interpreting VERA and that definition is unhelpfully vague.

 

From there I argued that there we have to try and understand what is INTENDED by the use of the term 'Public Road' rather than reach dogmatically for any other Act that has a definition to suit my own or the DVLA's arguments. I argued we have to start by considering what VERA is... because Courts should not create new effects in Laws, they are there to interpret Legislation as it is written and not to assume that because you can find a definition from somewhere that potentially widens the scope of the law, that this must be allowed.

 

In VERA dealing only with vehicles for which Vehicle Excise Duty was applicable, Parliament itself was clearly narrowing down the definition of where the law should apply to places where people are likely to be using cars. I think the extension of that from 'roads' to all sorts of other places was not originally envisaged by Parliament - or they would have used a broader definition.

 

I accepted that 'Public Road' in VERA was so vague that we all had no alternative but to look elsewhere - but in seeking a clearer definition with some legal precedent we had to always bear in mind that when attempting to apply it to VERA we should be careful it is only helping us understand VERA rather than effectively transforming VERA.

 

I argued firstly the Schedule 2A definitions and language could not be disregarded, especially in light of what the DVLA's own documents said they inferred. (see PDFs)

 

I agreed that Section 192 could provide some clarity and I accepted that there is case law that states road may be viewed as 'highway' which will encompass the carriageway, footpaths, verges... the relevance of Clarke vs Kato is that is describes how once you can determine there is a parking bay, it is no longer possible to claim it is part of the carriageway ...and of course not part of the pavement and verge either. They specifically discussed the carriageway because in many cases in car parks there is really one continuous surface and the only thing that creates a distinction between 'carriageway' and 'parking bay' are painted lines.

 

So I was not really arguing that only the carriageway is 'road' - I was focusing in on the critical facts in the case - that where the carriageway and parking are clearly separate things Clarke vs Kato should apply. The same could be true for a hypothetical parking space right in the middle of a grass verge ...the verge may be 'highway' but the parking space is distinct from it.

 

In my case there were a number of physical features, such as the fact the edge of the carriageway was clear from the position of drains, that the parking area was over a large kerb, etc... So the 'edge' of the carriageway separating it from from the car park is very clear.

 

 

I was also arguing that the use of 'Public Road' in VERA rather than Highway (not used once) seemed quite deliberate, especially when you consider VERA was written 8 years after the RTA and has been amended many times over the 20 years it has been around. Parliament clearly had a reason for thinking VERA needed some limitations compared to the RTA. If not, there only needed to state "Road shall have the same meaning as in RTA 1998"

 

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'.

 

Interesting - in fairness to you and others, I will have to go and read that case before commenting. I may have seen it before as I read just about every relevant piece of legislation and case history I could find over the last 9 months... It does make me wonder why the DVLA did not bring this piece of case law to court?

 

Perhaps this case will apply to most people because conventionally this is how most roads are laid out - but it may not always be applicable if the circumstances are factually different. Nonetheless, people should read cases that are 'close' to their own and see how the law operates before jumping to conclusions.

 

Again, the Courts have to decide in the facts of each individual case - bearing in mind the precedents or case law that may be relevant... So I will look at that case later when I get some time and we can compare notes!

 

Do you have a link to the judgement for "Alun Griffiths Ltd v DVLA"?

Edited April 29, 2015 by TofuMan
Clarity, spelling...

[Raykay]

http://www.bailii.org/ew/cases/EWHC/Admin/2009/3132.html

 

 

The dumper truck was parked on the grass verge behind a barrier, the court decided that it was still part of the 'Public Road' and that it included all of the land that was repairable at public expense, from the boundary of it on one side to the boundary on the other. Which may be all the land in pink in the council picture in post 22.

[TofuMan]

Oh yes I did read that - thanks. Useful link for others too perhaps.

 

I'll read it through again. There was a reason why I felt it was't applicable to me, I think because this land was not deliberately being put to the purpose of parking... so they were just deliberating whether the edge of the road was the barrier or the neighbouring boundaries... in determining if the offence was applicable in that case. I probably made some notes on it too. I'll be back later this evening perhaps

[Raykay]

There was a reason why I felt it was't applicable to me, I think because this land was not deliberately being put to the purpose of parking... so they were just deliberating whether the edge of the road was the barrier or the neighbouring boundaries.

 

 

 

In part 14 - 'fencing on both sides of the highway was prima facie evidence of its extent'

[TofuMan]

Yes - Prima Facie - meaning [from Latin, On the first appearance.] A fact presumed to be true unless it is disproved.

 

In definitions of 'road', people must have open access to use it as a road - they should not have had to overcome an obstacle such as a fence... I suppose some legal brain thought this may be a defence in that case.

 

Of course, the court viewed 'at first appearance' it was obviously the case that crash barriers are intended to provide safety for drivers rather than act as a fence to create boundary of some kind - but the matter still benefited from their further investigation.

 

In my case 'Prima Facie' the whole of the width of the road from boundary to boundary falls into the definition of Highway quite easily... however, it was on further investigation that the facts began to change that initial presumption.

 

Such facts were may not necessarily be readily apparent to a members of the public - but DVLA staff and Clampers who have the benefit of policy documents and the operating instructions manual, should not themselves be guessing!

 

As a member of the public you should not have to GUESS if you are breaking the law or not - and sadly in cases such as mine it becomes very difficult as a 'law abiding citizen' to know if you are breaking the law! That is why I have uploaded the internal DVLA documents, because we should not be disadvantaged against by their own culture of secrecy... Read the PDFs and you will know as much if not more than most DVLA staff.

 

The problem with Subject Access Requests and Freedom of Information Requests is the length of time they take to complete... so if people want anything from the DVLA under those routes they must do it quickly as soon as they think a dispute is in the offing.

 

The next port of call could be to check on the local council records... if you have good reason to doubt the land in question is a road, you should be able to find evidence to support you. Your council can tell you if the area is adopted highway, but I found that does not necessarily resolve the dispute. Council records will possibly have clearer evidence of what the status of land is legally... and as these are contemporaneous records, saying what they thought at the time (rather than prosecutors attempting to shift the language decades later to fit their agenda) these can have some weight in the considerations of a Court.

 

The 'prima facie' approach is often the basis on which the Police can arrested or detain people without knowing ALL the facts because it may be enough to have 'reasonable belief' that a law has been broken. (Blood all over your hands!)

 

The DVLA have pseudo police powers.... however the Police would be obliged to collect ALL the evidence and then have the CPS scrutinise it and only then, if it is good enough to prove 'beyond reasonable doubt', start the prosecution. Also, they would be obliged to share ALL the evidence they have with the defendant (under the Criminal Prosecutions Investigation Act), even if that evidence weakened the prosecution case.

 

The DVLA are not so diligent - you can be prosecuted just for failing to agree with them! In my case the DVLA really had no evidence, just a photo of my car and their own presumptions. They breached the CPIA failing to provide ALL the evidence (lucky I did my SAR/FoI early) and by filing their skeleton argument late (all three paragraphs of it!)

 

Ref:http://en.wikipedia.org/wiki/Prima_facie

Ref: http://legal-dictionary.thefreedictionary.com/prima+facie

Ref: Criminal Prosecutions Investigation Act: http://www.legislation.gov.uk/ukpga/1996/25/contents

Edited April 29, 2015 by TofuMan
clarity and spelling

[Raykay]

 

In my case 'Prima Facie' the whole of the width of the road from boundary to boundary falls into the definition of Highway quite easily...

 

 

That is it in a nutshell - If it is a highway (boundary to boundary) maintained (repairable) by the local authority - a Public Highway, it will be a 'Public Road' within the meaning of the Vehicles Excise & Registration Act 1994.

 

 

Unfortunately it may not be something that is generally known to the public, and why some unknowingly commit the offences.

[TofuMan]

That is it in a nutshell - If it is a highway (boundary to boundary) maintained (repairable) by the local authority - a Public Highway, it will be a 'Public Road' within the meaning of the Vehicles Excise & Registration Act 1994.

 

 

Unfortunately it may not be something that is generally known to the public, and why some unknowingly commit the offences.

 

Yes, I am not surprised the public are confused and the DVLA should not get to blame us for not understanding. They FAIL in their duty of care to properly advise the public.

 

I think that this should be in driving test theory, explicit in Highway Code, and when applying to SORN your car there should be access to far clearer information than currently exists... (better than a vague statement about your drive or garage).

 

However - back to my case, under VERA there is no 'Highway' it is only by inference that 'road' may be understood to mean 'highway' and therefore encompass the fence to fence approach.

 

In my case Schedule 2A was raised... the key issue there was that Schedule 2A is part of VERA and does provide definitions to assist the Court, as do the DVLA's own documents from 2008. (See PDFs). If these appear in VERA they have some weight in considerations about how we should interpret VERA over definitions obtained from legislation elsewhere.

 

If VERA and the DVLA state somewhere is 'beyond the public road' under Schedule 2A, it begs the question why they think they should prosecute anyone with a SORNed vehicle in those locations?! That is where they erred.

 

I think I shall elaborate on the DVLA's documents soon - and go through their own interpretations.

[Raykay]

The relevance of 'Highway' and 'Fence to Fence' is discussed in the Alun Griffiths Ltd Case.

 

 

 

In my case Schedule 2A was raised... the key issue there was that this DOES provide definitions to assist the Court, as do the DVLA's own documents from 2008. (See PDFs). If they state somewhere is 'beyond the public road' under Schedule 2A, it begs the question why they think they can prosecute anyone with a SORNed vehicle in those locations. That is where they erred.

 

 

They can enter land 'beyond the public road', except for the two locations mentioned in sch.2A, to clamp or remove unlicensed vehicles, unless those vehicles are exempt, one exemption is if there is a valid SORN declaration in respect of that vehicle.

 

 

A SORN declaration is not valid if the vehicle is on a Public Road, and so can be clamped or removed.

 

 

So one possibility is that if a SORN declaration has been made for a vehicle that is on a Public Road, the SORN declaration is not valid, but if the place comes within the definition of Sch.2A, V.E.R.A. The registered keeper commits the offence of being the keeper of an unlicensed vehicle, but it may not be clamped or removed.

[BIGGER BILL]

I for one would like to see the copy of VERA that the DVLA supplied complete with their notes.

If that copy of VERA was provided under the Freedom of Information Act then that copy is then in the public domain and can be circulated.

Please put it on this website for all to see.