WIN against the DVLA in Southampton Magistrates

[Raykay]

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

 

 

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

[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.

[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'

[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.

[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.

[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/

[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.

[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.

[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.

[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.

[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'

[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.

[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.