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SORN'd Vehicle Fine in Car Park, My car was impounded and then destroyed and now I have received a fine
PEMU
post Wed, 3 Apr 2019 - 23:19
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Dear Members,
My SORN'd vehicle was in a council car park and removed and destroyed without warning. My case seems quite similar to this one which I have just come across now (after a lot of previous unsuccessful searches to find what to do). Mine was also kept in a car park owned and maintained by the council:
http://forums.pepipoo.com/lofiversion/index.php/t114592.html

I need to send my appeal off tomorrow and I'd really appreciate some advice on what exactly to write in my appeal, especially in light of the above case. If anyone could recommend the exact wording that would really help as I haven't done something like this before.

Thanks a lot.
I'm going to paste a more detailed description below of my case which I previously wrote up for another forum:



I've been given a £340 fine from DVLA (pictures attached) which I would like to dispute and need your kind help with. 


A: The background:
1. I had an old runaround which I wasn't using at the time and was considering putting back on the road when my wife passes her test. 
2. We have a residential car park behind our house which, to my knowledge, is council property. To my knowledge, yes, it is technically maintained by them (although they never actually carry out any maintenance and repair the craters AKA potholes).
3. Now and then we get abandoned cars and the council puts notices on them and then removes. Last time they came round, I asked the officer and he told me I will be fine to leave my car there as long as I SORN it, which I did. 
4. Based on online reading I have now done, I think he was either just talking from the perspective of vehicles the council removes and not the DVLA's perspective, or he just got it wrong. 
5. In hindsight, I understand I should have been smarter and not taken his word and double checked and not left the car there as it seems it might still be deemed as on the public road. 
6. Unless someone has any strong evidence otherwise, I'm happy to concede I made a misjudgement and am looking for advice on what to with the fine now. It was an innocent mistake in the sense that I never meant to do anything wrong or dodge any rightful charges. 


B: Things that don't seem right or could potentially be avenues to explore:


1. They didn't give me any warning, clamp or notice and just removed the car suddenly. 

2. I received the letter telling me of it being impounded after 8th Feb which is when it was already destroyed (although it is dated on 5th Feb). I can't think of how I can prove which day I received the letter though, even if that's of relevance.

3. They have spelled the name of the car park wrong by writing a double N at the end of the name instead of one N, so "***nn" instead of "***n" 
4. The original impound letter says they search for vehicles that don't have tax or SORN and they said my vehicle met neither, but it was SORN'd which they acknowledge in the second fine letter. I might be reading the letter wrong though. 

C: Things I would like advice on:

1. Is it worth telling the DVLA my sob story in the hope of some sort of concession or full/partial let off and if so, what's the best approach for that (call/letter, etc.)?

2. Is it just an urban myth or can fines actually be contested on technicalities like them spelling the name of the car park wrong or implying I didn't have it SORN'd in the first letter?
3. Do they have to give a warning or anything or can they just impound the car immediately and is that a worthwhile line of complaint? If they put a warning/clamp for a few hours, my neighbours and I might have missed it (they would have told me if they saw something). 
4. What is likely to happen now and what's the best avenue for me to explore?

D: Potential Actions I have thought of:
1. Write a long letter to dispute the fine based on all of the above (so plea for compassion as well complaint)
2. Only appeal for compassion for now
3. Dispute on the grounds of the car park name being wrong, if that's even a thing
4. Dispute on grounds they gave no warning/notice 
5. Any other combination of above, or something else you can recommend

I'd really everyone's thoughts and input. 
Thanks

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post Wed, 3 Apr 2019 - 23:19
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kernow2015
post Fri, 19 Apr 2019 - 08:02
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DVLA are in the process of devolving some councils with powers to deal with untaxed vehicles, and from what I've seen locally they (DVLA) do clamp in council run car parks, presumably as they are public regardless of it being classed as a road or not. I think the only way around it was if it's a private car park then they can't enforce it.
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localdriver
post Fri, 19 Apr 2019 - 08:52
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QUOTE (PEMU @ Thu, 18 Apr 2019 - 23:22) *
They say something about "Public Road" being removed from some legislation in 2008 but I don't know what that's supposed to mean.


Prior to 2008, the wording of s.29 (1) of Vehicles Excise Act 1994 was 'If a person uses, or keeps, on a public road a vehicle (not being an exempt vehicle) which is unlicensed he is guilty of an offence.

It was amended by sch. 45, 2, (2), Finance Act 2008 which substituted 'on a public road a vehicle (not being an exempt vehicle)' with 'a vehicle', and introduced exemptions - one of which is if the vehicle is subject to a valid SORN, sch.45, 3, (2B).

This post has been edited by localdriver: Fri, 19 Apr 2019 - 08:53
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localdriver
post Fri, 19 Apr 2019 - 10:28
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QUOTE (kernow2015 @ Fri, 19 Apr 2019 - 09:02) *
DVLA are in the process of devolving some councils with powers to deal with untaxed vehicles, and from what I've seen locally they (DVLA) do clamp in council run car parks, presumably as they are public regardless of it being classed as a road or not. I think the only way around it was if it's a private car park then they can't enforce it.


A registered vehicle is required to be licensed, unless exempt, wherever it is - and that can be enforced in private as well as council car parks.

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andy_foster
post Fri, 19 Apr 2019 - 11:09
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At the risk of further derailing this discussion of random opinions, Parliament's intentions are primarily relevant only to the interpretation of ambiguous terms in the statute. In a free society, any individual is free to do anything not prohibited by law, and such prohibitions must be sufficiently clearly expressed to overcome the presumption that Parliament did not intend to prohibit them.

Road tax, under whatever name it is given at the time, is primarily aimed at taxing vehicles used (driven, parked or towed) on roads maintained at public expense (which gave rise to the reasonable but incorrect assumption that the tax was to be used for building and maintaining such roads). There was a perceived widespread problem of people using cars on public roads but not being caught, so the law was changed to require vehicles to be taxed (and later, also to be insured) unless they were declared SORN (unless they fell under some other category of exempt vehicle). If a vehicle was declared SORN and found to be used on a public road, the penalties would be far harsher than if the vehicle was merely untaxed, but not declared SORN.

It seems entirely reasonable to assume that Parliament were only concerning themselves with whether or not SORN cars were being kept on roads maintained at public expense, and that this is the mischief they were intending to address. It would be utterly improper fro the courts to expand upon the legislation by considering that Parliament ought to have considered where other than on public roads SORNed vehicles might be kept, and considering that Parliament would necessarily then have decided that some places other than public roads ought to be prohibited.


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PEMU
post Fri, 19 Apr 2019 - 22:56
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I'm grateful to everyone for their input so far.
Can anyone provide any recommendations on what I should now do?

Should I contact the council and, if so, who, how and saying what?
Should I respond the letter from DVLA and if so, saying what?
Should I ask for an extension to the 29th April deadline as that's effectively one week?

All the conversation regarding legislation has gone a bit over my head.

Thanks again.
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Logician
post Sat, 20 Apr 2019 - 00:17
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I would reply to DVLA along the following lines:

Thank you for confirming in your letter of 12th April 2019 that there is an exemption from s.29 Vehicle Excise and Registration Act 1984 for a vehicle kept off the public road and with a valid SORN in force. There is no dispute that a valid SORN was in force in respect of my vehicle, and as it was in a car park, it was not on the public road. As you will be aware, there is legal authority holding that a car park is not a road.
As you request, I will ask Enfield Council to confirm that the car park in question is their car park and not a public road, but I doubt I will obtain this by the 29th April, knowing the speed at which local councils operate, so if you feel you have to take further action after that date you will have to proceed. If the matter does go to court, then of course it will be up to the prosecution to attempt to prove that the car park is a public road.
I do not have specific permission to park there because it is a car park open to the public where anyone may park, and I do not understand the relevance of your request to the operation of s.29 VERA 1984, so please explain.

And write to Enfield Council:

On xx April 2019 your operatives removed my vehicle XXXXXXXX from the car park between Glyn Road and the High Street, purportedly acting under devolved powers given to you to impound unlicensed vehicles.
The DVLA have confirmed to me that the vehicle was validly declared SORN, and that there is an exemption from s.29 Vehicle Excise and Registration Act 1984 for a vehicle kept off the public road and with a valid SORN in force. There is legal authority that a car park is not a public road, and you therefore had no authority to remove the vehicle.
I understand that the vehicle has been destroyed and I therefore seek compensation for its value.
At the request of the DVLA, I ask you to confirm to me that the area in question is a car park open to the public and not a public road.


Before you go ahead, let us see what others suggest.


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PEMU
post Sat, 20 Apr 2019 - 09:15
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Thank you for your suggestion and, as advised, I will wait to see if any other members add any suggestions.
Anyone have any idea which department of the council I would try to get through to or email/write to in this regard?
The letter says "as such, should have been parked/kept off the public highway".
Is their usage of highway likely to just be casual or is there some legal significance of that word? Would it be wise to make any reference to "highway" in my response?

@Logician, you suggested:

"As you will be aware, there is legal authority holding that a car park is not a road."

By that, are you referring to the other cases existing online where the court ruled it was not a "road"?

Sorry for the hair-splitting questions - I'm just trying to understand in as much detail as possible where I stand.
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localdriver
post Sat, 20 Apr 2019 - 09:55
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QUOTE (PEMU @ Sat, 20 Apr 2019 - 10:15) *
Anyone have any idea which department of the council I would try to get through to or email/write to in this regard?


The council should have a department that deals with abandoned vehicles. Most councils use contractors to deal with abandoned vehicles so the report could have been from the contractor, who pass details to the council, who pass details to the DVLA, so there may be a delay if the council have to get the details from the contractor of the exact location of where the car was parked.

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Logician
post Sat, 20 Apr 2019 - 14:56
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QUOTE (PEMU @ Sat, 20 Apr 2019 - 09:15) *
Thank you for your suggestion and, as advised, I will wait to see if any other members add any suggestions. Anyone have any idea which department of the council I would try to get through to or email/write to in this regard? The letter says "as such, should have been parked/kept off the public highway". Is their usage of highway likely to just be casual or is there some legal significance of that word? Would it be wise to make any reference to "highway" in my response? @Logician, you suggested: "As you will be aware, there is legal authority holding that a car park is not a road." By that, are you referring to the other cases existing online where the court ruled it was not a "road"? Sorry for the hair-splitting questions - I'm just trying to understand in as much detail as possible where I stand.


I would address your letter or email to 'Unlicensed Vehicles Department' and not mention abandoned vehicles, as they were purporting to remove your car because it was unlicensed, not because it was abandoned.

They use the word highway, but the statute concerned uses the word road, so I would stick to that.

The legal authority was referred to earlier and is online HERE This was decided by the House of Lords (The Appellate Committee, which is now the Supreme Court). This is the highest court in the country and determines definitively what the law means. If you want to be specific about the case, refer to it as "Clark and Others v. Kato, Smith and General Accident Fire &amp; Life Assurance Corporation Plc [1998] UKHL 36; [1998] 4 All ER 417; [1998] WLR 1647 (22nd October, 1998)"






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PEMU
post Thu, 23 May 2019 - 01:17
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QUOTE (Logician @ Sat, 20 Apr 2019 - 01:17) *
I would reply to DVLA along the following lines:

Thank you for confirming in your letter of 12th April 2019 that there is an exemption from s.29 Vehicle Excise and Registration Act 1984 for a vehicle kept off the public road and with a valid SORN in force. There is no dispute that a valid SORN was in force in respect of my vehicle, and as it was in a car park, it was not on the public road. As you will be aware, there is legal authority holding that a car park is not a road.
As you request, I will ask Enfield Council to confirm that the car park in question is their car park and not a public road, but I doubt I will obtain this by the 29th April, knowing the speed at which local councils operate, so if you feel you have to take further action after that date you will have to proceed. If the matter does go to court, then of course it will be up to the prosecution to attempt to prove that the car park is a public road.
I do not have specific permission to park there because it is a car park open to the public where anyone may park, and I do not understand the relevance of your request to the operation of s.29 VERA 1984, so please explain.



Good morning
I replied to DVLA on above lines and received the attached response. They're still asking for proof from the council which I doubt (and I think they are confident) I will never get.
It seems to me they are perhaps making things up as they go along in terms of interpreting the legislation how they wish. They are saying I need written proof of permission whereas, doesn't the legislation just say it needs to be off the public road?
I will appreciate any further advice on how to respond to this.

I'm trying to attach picture but won't let me. Will try in a subsequent post.

Thanks again
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PEMU
post Thu, 23 May 2019 - 02:22
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I can't upload images for some reason so have OCR'd it:

"Dear .....

Thank you for your reply to our letter regarding the above vehicle.

Your comments in your letter have been noted. However, it may help if I explain that when a
vehicle is declared SORN (Statutory Off Road Notification) the vehicle must be kept on private
land. The Driver and Vehicle Licensing Agency (DVLA) does not provide advice about which
areas are public and which is private land. If the keeper does not own the land on which a
vehicle is stored it is their responsibility to determine the exact status and obtain permission
from the landowner if necessary. Queries regarding the status of land should be directed to the
Local Authority. It is the responsibility of the vehicle keeper to ensure that the vehicle is
correctly parked when a SORN is in force.
I am prepared to offer you a final opportunity to provide evidence eg Letter from Enfield Council
or the landowner on headed paper or pay the Out of Court Settlement of £340.00 as requested
in our previous letter until 06/06/2019. We are unable to accept instalments."

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cp8759
post Thu, 23 May 2019 - 12:54
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The Driver and Vehicle Licensing Agency (DVLA) does not provide advice about which
areas are public and which is private land.


That may be so, but the DVLA bears the burden of proof if they want to take you to court. If the DVLA has no opinion on which areas are public and which areas are private land, it's going to struggle to prove the point beyond reasonable doubt. If it's a council car park, there should be a traffic management order designating it (or rather the bays within it) as off-street parking places, so rather than waiting for a reply for the council I'd simply get hold of the TMO and send that to DVLA.

I also suggest you need to send a pre-action protocol letter to the council, basically threatening to sue them for the value of the car, but it might be an idea to leave that until the DVLA angle is sorted out.


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Logician
post Thu, 23 May 2019 - 13:46
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I would reply thanking them for their letter and continuing along the lines of:

You state that "when a vehicle is declared SORN (Statutory Off Road Notification) the vehicle must be kept on private land" but that is not actually the case, the requirement under s.29(2B)(a) VERA 1994 is that "the vehicle is being neither used nor kept on a public road" which it was not.

The status of the land is that it is a public car park operated on a free of charge basis by Enfield Council. It is shown as such on their website with the URL https://en.parkopedia.co.uk/parking/carpark...ng=201905231630 and as such I have implied permission to park there.

I am not accepting your offer of an out of court settlement and invite you to prosecute me if you still contend I have committed an offence. I draw your attention to s.29(2E) VERA 1994 which has the effect that if I adduce evidence that is sufficient to raise an issue with respect to this issue it is for the prosecution to prove beyond reasonable doubt that the exception does not apply.


As helpfully advised by cp8759 I would also get hold of the relevant TMO from the Borough Surveyor's office, and also visit the site and take photographs of any car park signs. If you can get these before 6th June include copies with your letter.

This post has been edited by Logician: Thu, 23 May 2019 - 18:08


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TonyS
post Thu, 23 May 2019 - 14:50
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What do they mean by "public land" anyway? The guidance, which I accept is not the actual legislation, all refers to whether or not it is a public road.
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Logician
post Thu, 23 May 2019 - 15:00
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QUOTE (TonyS @ Thu, 23 May 2019 - 14:50) *
What do they mean by "public land" anyway? The guidance, which I accept is not the actual legislation, all refers to whether or not it is a public road.


Quite, they are making it up to suit themselves. They like to think they are THE LAW but they are not quite Judge Dredd!



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PEMU
post Thu, 23 May 2019 - 16:36
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Thank you again everyone for your replies.
After failing to find anything relevant on Google, can anyone kindly explain what a TMO is and how to obtain one (and what the purpose would be)?

Regarding the council and the value of the car, if and when I can get through this one, I think I'll explore that perhaps. Thanks.

I could be wrong, but their latest reply seems like someone has actually gone to the effort of sitting and writing it from scratch (as opposed to a copy and past job). I wonder if the same person would bother searching forums to see for themselves what's out there. Just a thought.
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The Rookie
post Thu, 23 May 2019 - 16:40
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Traffic Management Order, it’s how a council (highways authority) creates a restriction, signage only reflects a legally created restriction, it doesn’t create it.

They are public documents that the council have to make available on request, they will often do so via email and a PDF.


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PEMU
post Thu, 23 May 2019 - 17:17
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QUOTE (Logician @ Thu, 23 May 2019 - 14:46) *
The status of the land is that it is a public car park operated on a free of charge basis by Enfield Council. It is shown as such on their website with the URL "https://en.parkopedia.co.uk/parking/carpark/glyn_road/en3/london/?arriving=201905231430&leaving=201905231630" and as such I have implied permission to park there.



The link doesn't seem to work for me. Is it working for everyone else or should I request a repost?
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Redivi
post Thu, 23 May 2019 - 17:37
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Remove the "..." around the web address

I pasted into Word and removed the hyperlink

That allowed me to remove the "..."

Converting back into a hyperlink worked

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Logician
post Thu, 23 May 2019 - 18:09
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QUOTE (PEMU @ Thu, 23 May 2019 - 17:17) *
QUOTE (Logician @ Thu, 23 May 2019 - 14:46) *
The status of the land is that it is a public car park operated on a free of charge basis by Enfield Council. It is shown as such on their website with the URL "https://en.parkopedia.co.uk/parking/carpark/glyn_road/en3/london/?arriving=201905231430&leaving=201905231630" and as such I have implied permission to park there.
The link doesn't seem to work for me. Is it working for everyone else or should I request a repost?


Sorry about that, I have now edited the original post.



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