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FightBack Forums _ Speeding and other Criminal Offences _ dvla clamps
Posted by: markadams Thu, 18 Jul 2019 - 05:56
Post #1500815
I am a car trader, i have motor trade insurance, and all vehicles are purchased via main agents, put `in trade` using the yellow slip, and stay in my custody or control until sold.
Being `in trade` as i recall means i dont have to tax insure the car etc. If the car needs moving, or for demonstration i use trade plates.
I can only keep 7 cars at home so i use a couple of private parking areas. I have a friend with a flat in each so use the many many available parking spaces as i dont have premises. Private car par, private land.
So i went to my cars yesterday and the cars had been clamped, clearly reported to dvla. Maybe dvla hadnt checked they were in trade and it stated they had been reported to dvla and clamped. The company that clamped them i believe is NSL and they have a compound in west bromwich.
A quick look on the gov.uk website tells me these cars need to be sorned, but how can i take a sorned car onto the road for a text drive? Or for an mot?
So this morning i need to make some calls and am asking your incredible brains where i stand with this.
i have read this....
https://www.gov.uk/sorn-statutory-off-road-notification/motor-traders
It doesnt make good reading especially as i dont have `business premises` which actually means i cant park them at home without SORN, and if i do and their on a test drive im then also comitting anoffence
Posted by: Logician Thu, 18 Jul 2019 - 11:32
Post #1500885
I think the situation is as follows, but stand to be corrected:
Cars kept on your drive
I do not see any reason why your home cannot also be your business premises, various things would support that, if any registration gives that address, such as your trade plates, if customers come to that address, when you advertise I guess you use a mobile number but it would be better if you gave a landline number at that address and arranged for calls to be diverted to your mobile, if you trade through a company that could be the registered address. That would then bring you within the exceptions for motor traders, as listed.
Cars kept in private parking areas
They are clearly not on your business premises and therefore need to be SORNed. You can take a SORNed vehicle to a pre-booked MoT and for repair if it fails, but you could also use your trade plates, and must use your trade plates for a test drive. You need to be certain that the place they are kept is not a road and to avoid argument is very clearly not a road. A car park is not a road, but if it is clearly signed as a private car park, so much the better.
As the cars that were clamped were not taxed, or on SORN and not displaying trade plates, you are guilty of an offence.
Posted by: markadams Thu, 18 Jul 2019 - 18:08
Post #1501037
Where may i ask, if i may, where you got your information from
Posted by: Foxy01 Thu, 18 Jul 2019 - 20:00
Post #1501068
Only the cars kept at your 'premises' can be kept 'in trade' and not Sorn'd. The only way to prevent future clamping at the other locations would be to register the cars in your name and then declare Sorn, or fill out a V890 and also send off the V5C by post. As I understand it there is no way to legally trade the way you are trading without running the risk of getting the cars clamped. Short of removing reg plates and covering up chassis number if in a private car park.
Posted by: The Rookie Thu, 18 Jul 2019 - 20:33
Post #1501080
As removing the reg plates would be illegal in itself that hardly solves the problem of being illegal!
Posted by: Foxy01 Thu, 18 Jul 2019 - 20:54
Post #1501087
As removing the reg plates would be illegal in itself that hardly solves the problem of being illegal!
Is it illegal to remove plates in a private car park?
Posted by: andy_foster Thu, 18 Jul 2019 - 21:19
Post #1501098
IIRC the legislation creating the requirement/offence is silent as to where it is committed. IMHO this should men that it should be construed restrictively - e.g. only applying on a public road. If it were to have universal application, an offence would be committed if a mechanic in a workshop removed a bumper.
Posted by: Logician Thu, 18 Jul 2019 - 23:13
Post #1501117
Whether your home is also your place of business is a question of fact, I just suggested ways to evidence that.
Rules on MoT are https://www.gov.uk/getting-an-mot
When you need to SORN a vehicle is explained https://www.gov.uk/sorn-statutory-off-road-notification
Posted by: markadams Fri, 19 Jul 2019 - 06:25
Post #1501126
logician i was going to say thankyou and you are bang on...
the problem is, to me, that its a private car park, not part of the public highway not council land, so one should be safe, yet one has to SORN the vehicle for it not to be clamped even though its `in trade`. So to say, its not my business premises seems pretty flimsy when it shouldnt be that way.
Surely if its off the road its off the road, its off the highway, private land, not belonging to the highway/council/ etc.
It seems to me theyve made their own laws up here to suit. I just hope they dont clamp it for being on the highway when i sorn it !!! that way they would have it both ways.
£1000 it cost me yesterday to remove the clamps, its just a money making scheme, but anyway, going forward, can i send off the 10 cars with a v890 and v5c by post and sorn them all and im covered?
I do appreaciate your excellent guidance on this one.
Posted by: IanJohnsonWS14 Fri, 19 Jul 2019 - 09:25
Post #1501164
This is partly your problem, it is not YOUR private land (it is probably a public place as visitors have access) and you will have been reported by the residents whose visitors you are preventing from parking by occupying the spaces. Many of these car parks require vehicles parked by property owners / tenants to be road legal (taxed etc.). You will need to ask your friend for sight of the covenants relating to the property - but of course they don't apply to you as you are not an owner/resident at the property so you don't have to comply with them, or have the protection of them. I dare say he won't be very popular with his neighbours when they find out what is going on.
A van was removed from the car park at my daughter's flat, by the management company, because it was not taxed or insured and the owner didn't respond to requests to address the issue. By removed I mean winched onto a trailer while locked, it took some time for the tyre marks to wear off the car park.
Posted by: localdriver Fri, 19 Jul 2019 - 11:37
Post #1501199
The offence is being the keeper of an unlicensed vehicle (at any location) - s.29, Vehicles Excise and Registration Act 1994. There are exemptions, one is if the vehicle is not used or kept on a public road, and there is a valid SORN in respect of the vehicle - s.29 (2B), the other is if the vehicle is kept by a motor trader at business premises - s.29 (2C).
Posted by: Logician Fri, 19 Jul 2019 - 12:00
Post #1501214
Exactly that, the vehicle does not have to be seen, it is an offence that is caught from the DVLA register, generally speaking a vehicle has either to be taxed or to be on SORN, and a trawl through the register will reveal these vehicles, and the DVLA will send a demand for payment. Exceptionally, motor traders are allowed not to SORN a vehicle that is in trade (because you can only do that if you are the registered keeper, and they do not want to register the car in their name) but a condition of that is that is the vehicle is on their business premises, as you found out. What must have happened is that the vehicles were seen in the car park, they were not taxed or on SORN, the traders exemption could not apply since there were obviously not at business premises, so they were clamped.
Posted by: Irksome Fri, 19 Jul 2019 - 12:16
Post #1501222
If I run a motor trading company and rent parking spaces to keep my stock on, do those parking spaces not become business premesis wherever they are - they are rented for the purposes of business. Much like a storage unit in a self storage lockup can be considered business premesis?
Posted by: PickAName Fri, 19 Jul 2019 - 18:20
Post #1501349
Hi everyone. Long time lurker but I had to register after reading this thread.
I have been a motor car dealer since the late seventies and I have always had trade plates since then.
I disagree. A quick check on the BCA website shows they are currently holding 22,577 vehicles on their various sites. The majority of those vehicles will be owned by the motor trade. Those motor traders do not own the BCA land. If what you say is correct there are a good 22000 offences being committed today. And then there is Manheim......
Trade plates can only be used when going from trade premises to trade premises. Trade premises will include car sites, MoT stations, repair garages, auction sites and scrap yards. There is no requirement for the Trade Licence owner to either own or have control over the trade premises. If there was such a requirement it would mean that delivery by trade plates would be impossible. Getting an MoT or repairs via a third party on a stock vehicle would be impossible too.
As for the OP's situation....I would say that it will all depend on whether or not VED is required where the vehicles were parked. If not, no VED offence has been committed. However, I would suggest an offence has been committed regarding the Trade Licence. A private car park is not trade premises.
Incidentally, when I first obtained plates the rules were that they must be displayed externally and must cover the vehicle's VRM so that it could not be seen. The rules have now changed and the plates must be displayed externally but the VRM must be visible. I guess that is to allow plod to check for MoT.
Posted by: Logician Fri, 19 Jul 2019 - 19:51
Post #1501373
The DVLA advice is https://www.gov.uk/sorn-statutory-off-road-notification/motor-traders
Presumably they either classify BCA sites as business premises of the trader who owns the vehicle, on the basis that the intention is that it should be sold from there, or consider that BCA are in temporary possession of the vehicle.
Posted by: localdriver Fri, 19 Jul 2019 - 20:10
Post #1501379
As is often the case with the gov.uk website, it gives general advice, and as in this case, not always that accurate and should never be relied on without reference to the relevant legislation. The wording of the exemption for traders in s.29 (2C), Vehicles Excise & Registration Act is " if the vehicle is kept by a motor trader or vehicle tester at business premises", it does not make any reference to the ownership of the business premises.
Posted by: andy_foster Fri, 19 Jul 2019 - 20:20
Post #1501382
Standard rant #46 - it never ceases to amaze me (and clearly I ought to know better by now) the amount of time people are willing to spend trying to distil the precise points of law from vague and often incorrect general advice.
However, if one were to consult VERA, one might readily stumble upon what appears to be the relevant provision(s), in https://www.legislation.gov.uk/ukpga/1994/22/section/29, helpfully entitled "Penalty for using or keeping unlicensed vehicle."
I note that "at business premises" appears at first blush to have unduly wide scope, but would seem to readily explain why a vehicle kept by a motor trader at the business premises of another motor trader does not constitute an offence.
(1)If a person uses, or keeps, [F1a vehicle] which is unlicensed he is guilty of an offence.
(2)For the purposes of subsection (1) a vehicle is unlicensed if no vehicle licence or trade licence is in force for or in respect of the vehicle.
[F2(2A)Subsection (1) does not apply to a vehicle if—
(a)it is an exempt vehicle in respect of which regulations under this Act require a nil licence to be in force and a nil licence is in force in respect of the vehicle, or
(b)it is an exempt vehicle that is not one in respect of which regulations under this Act require a nil licence to be in force.
(2B)Subsection (1) does not apply to a vehicle if—
(a)the vehicle is being neither used nor kept on a public road, and
(b)the particulars and declaration required to be furnished and made by regulations under section 22(1D) have been furnished and made in accordance with the regulations and the terms of the declaration have at no time been breached.
(2C)Subsection (1) does not apply to a vehicle if the vehicle is kept by a motor trader or vehicle tester at business premises.
(2D)The Secretary of State may by regulations make provision amending this section for the purpose of providing further exceptions from subsection (1) (or varying or revoking any such further exceptions).
(2E)A person accused of an offence under subsection (1) is not entitled to the benefit of an exception from subsection (1) conferred by or under this section unless evidence is adduced that is sufficient to raise an issue with respect to that exception; but where evidence is so adduced it is for the prosecution to prove beyond reasonable doubt that the exception does not apply.]
(3)[F3Subject to subsection (3A)] a person guilty of an offence under subsection (1) is liable on summary conviction to an excise penalty of—
(a)level 3 on the standard scale, or
(b)five times the amount of the vehicle excise duty chargeable [F4in respect of using or keeping the vehicle on a public road],
whichever is the greater.
[F5(3A)In the case of a person who—
(a)has provided the Secretary of State with a declaration or statement (in pursuance of regulations under section 22) that the vehicle will not during a period specified in the declaration or statement be used or kept on a public road, and
(b)commits an offence under subsection (1) within a period prescribed by regulations,
subsection (3) applies as if the reference in paragraph (a) to level 3 were a reference to level 4.]
(4)Where a vehicle for which a vehicle licence is in force is transferred by the holder of the licence to another person, the licence is to be treated for the purposes of subsection (2) as no longer in force F6... .
F7(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6)The amount of the vehicle excise duty chargeable in respect of a vehicle is to be taken for the purposes of subsection (3)(b) to be an amount equal to the annual rate of duty applicable to the vehicle at the date on which the offence was committed.
(7)Where in the case of a vehicle [F8not being used] on a public road that annual rate differs from the annual rate by reference to which the vehicle was at that date chargeable under [F9section 2(3) to (6)], the amount of the vehicle excise duty chargeable in respect of the vehicle is to be taken for those purposes to be an amount equal to the latter rate.
(8)In the case of a conviction for a continuing offence, the offence is to be taken for the purposes of subsections (6) and (7) to have been committed on the date or latest date to which the conviction relates.
Posted by: Logician Fri, 19 Jul 2019 - 22:50
Post #1501392
Mea culpa
Posted by: markadams Wed, 31 Jul 2019 - 07:17
Post #1504041
Hi everyone sorry for any delay as have been away.
Ok some updates and looking for help still as in my eyes its being made so whichever way i do anything i cannot do it right..
firstly below is the legislation (as printed on one of their leaflets) for the act.
https://www.legislation.gov.uk/uksi/1997/2439/made
secondly https://imgur.com/a/ddY671m is a letter dvla sent back to me when i sent in a v890 and completed v5c to sorn all of the vehicles..
thirdly, and this is in progress, i have had confirmation that the land is indeed NOT part of the public highway albeit it is not private in the sense that the public do have access to it. Which to be fair goes for any piece of land anywhere even bmws forecourt !!
Speaking with dvla yesterday if they choose too the cars might be clamped again if they consider it to be part of the highway for sorning them but being left on the highway. So as i say surely it is for i to prove that it is not the public highway which it isnt.
Some of the more amazing ones of you will surely be able to spot somewhere if there is anything that supports my case.
It is almost laughable that NSL on behalf of dvla have clamped the cars, but wont clamp them if they are sorned, for dvla to say i dont need to sorn them, msybe that in itself is enough evidence?
Where do i go from here?
Posted by: localdriver Wed, 31 Jul 2019 - 07:48
Post #1504047
Your 1997 link is out of date. The latest legislation is sch. 2A, Vehicles Excise & Registration Act 1994, amended by sch. 45, Finance Act 2008, which removed the words 'on a public road', and would be the reason the vehicles were clamped where they were.
The SORN exemption is valid if the vehicles are not used or kept on a public road - a road maintainable at public expense.
Posted by: markadams Wed, 31 Jul 2019 - 08:16
Post #1504058
Do you have a link to the current legislation please
Posted by: localdriver Wed, 31 Jul 2019 - 08:18
Post #1504061
Schedule 2A, Vehicles Excise and Registration Act 1994.
Posted by: markadams Wed, 31 Jul 2019 - 08:28
Post #1504065
So this?
https://www.legislation.gov.uk/ukpga/1994/22/schedule/2A
Posted by: Logician Wed, 31 Jul 2019 - 10:01
Post #1504091
The crucial part of the regulation quoted is:
Power to immobilise vehicles
5.—(1) This regulation applies where an authorised person has reason to believe that an offence under section 29(1) of the 1994 Act is being committed as regards a vehicle which is stationary on a public road in England or in Wales.
Note it applies to a public road, not a place to which the public has access, and a car park is not a road. A public road is a road maintained at public expense.
There was therefore no authority to clamp your vehicles.
The DVLA tend to think that they make the law, and they can clamp a vehicle unless it is clearly on private land, which is quite wrong, and shown to be wrong on their own leaflet.
Having said that, fighting with the DVLA is not a productive use of your time, and surely it would make sense for you to find a piece of land you can rent to store your stock?
Posted by: localdriver Wed, 31 Jul 2019 - 10:16
Post #1504095
The words 'on a public road' were removed by sch.45, Finance Act 2008. .
Posted by: The Rookie Wed, 31 Jul 2019 - 10:31
Post #1504101
5(1)Paragraph 1 (immobilisation) is amended as follows.
(2)In sub-paragraph (1), for “on a public road” substitute “ in any place other than a place to which this Schedule does not apply ”.
(3)After that sub-paragraph insert—
“(1A)This Schedule does not apply to—
(a)any place which is within the curtilage of, or in the vicinity of, a dwelling-house, mobile home or houseboat and which is normally enjoyed with it, or
(b)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.”
Posted by: Logician Wed, 31 Jul 2019 - 10:39
Post #1504108
But apparently the DVLA do not know that, and quoting their own leaflet at them puts them on the back foot.
Posted by: southpaw82 Wed, 31 Jul 2019 - 10:41
Post #1504111
But apparently the DVLA do not know that, and quoting their own leaflet at them puts them on the back foot.
So your advice is to make an assertion as to the law that you know to be incorrect?
Posted by: The Rookie Wed, 31 Jul 2019 - 11:16
Post #1504121
If they were "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.” e.g. a car park for a block of flats then they may well still be exempt from clamping.
Posted by: Logician Wed, 31 Jul 2019 - 11:33
Post #1504129
No, more "according to your leaflet...…………."
Posted by: markadams Wed, 31 Jul 2019 - 12:24
Post #1504152
Guys, some of you are far too smart for the likes of me.
You can clearly see whats going on here. Yes ive been naughty morally and used ample parking spaces at a block of flats clearly off of the road, however i am a good boy have my motor trade insurance, trade plates, pay my taxes etc etc.
But the point is that THEY seem to be making it up as they go along. An officer years ago put a ticket casuing an unnecessary obstruction for a car that was up for sale. I took it to court, a pcso stood in the box, i ran rings round her, the car had only been there that day, there was no proof otheriwse, they found me not guilty....
Here we clearly have authorities doing as they please and today it affects me and tomorrow it affects you, none of us are immune to changign legislation we know nothing about, or even, as im trying to show here, that it was totally illegal....and would like my money back, and if i do i will share with you who helped and your charities.
It really isnt a good place to be having authorities like this doing exactly as they please.
So where am i with this?
Posted by: localdriver Wed, 31 Jul 2019 - 13:13
Post #1504167
The authority is not 'doing exactly as they please', they are complying with current legislation. You may have two matters to consider, the immobilisation - which you are already dealing with, and possibly the offence of being the keeper of an unlicensed vehicle - s.29,(1), Vehicles Excise & Registration Act 1994. What often happens after a vehicle is clamped for not being licensed is an 'out of court settlement offer' from the DVLA for the s.29 offence, if the offer is not accepted, a summons to magistrates court follows.
Posted by: markadams Thu, 1 Aug 2019 - 06:06
Post #1504351
dvla have confirmed they have no interest inthe vehicles for `back tax` as they are in trade and not on the public highway !! Therefore there will be no contact from them on the vehicles in that regard. So yes they are doing and making it up as they please
Posted by: localdriver Thu, 1 Aug 2019 - 07:13
Post #1504357
The DVLA are not 'doing and making it up as they please'. You, as a trader, failed to comply with the legislation in respect of the exemption for traders and the location of the vehicles, and your vehicles were not licensed. The fact that they were not on a public road is irrelevant. It is a matter for the DVLA to make the decision to take, or not to take, action in respect of that offence.
Posted by: Incandescent Thu, 1 Aug 2019 - 09:09
Post #1504380
And, of course, make lots of money at the same time.
Posted by: The Rookie Thu, 1 Aug 2019 - 10:25
Post #1504394
We haven't yet established if the vehicles were within a curtilage of or vicinity of a dwelling and as such shouldn't have been immobilised though have we?
Posted by: markadams Thu, 1 Aug 2019 - 16:08
Post #1504507
We haven't yet established if the vehicles were within a curtilage of or vicinity of a dwelling and as such shouldn't have been immobilised though have we?
Yes thats what i thought, it seems a few of you are arguing amongst yourselves over who is right, lets be fair this is a disgrace, imagine your own car is off the road and sorned even and they clamp it, because they feel like it, if you see what i mean.
Thats why we must fight this and im hoping for a solution going forward, to have a fight.
Rookie not sure where you are this was leamington by the way
We haven't yet established if the vehicles were within a curtilage of or vicinity of a dwelling and as such shouldn't have been immobilised though have we?
hi, you seem to be making the most sense, just wondering if you are from or know leamington and may want to help to some degree with this, ie i let you know where they are and we can get it up on maps and hopefully make a case? obviousy thats not a sensible choice publically and your inbox is full
Posted by: localdriver Thu, 1 Aug 2019 - 18:53
Post #1504552
It may depend on the interpretation of 'normally enjoyed only by the occupiers of one or more of those dwellings', and the status of the car park - residents only etc.
Posted by: The Rookie Fri, 2 Aug 2019 - 05:28
Post #1504597
Yep, I’ve lived in Leam since 1992......
I’ll free some inbox, most regulars keep it full to stop incessant messages that should be dealt with on the forum.
Posted by: KH_ Fri, 2 Aug 2019 - 16:18
Post #1504767
Hmmm, now I have concerns. My car is parked in a shopping centre underground car park. There are flats above the shopping centre.
I pay quarterly to park in there at a reduced rate as a tenant of the flats. If you provide your tenancy letter and proof of who you are, you get to park there cheaply.
It sounds like 'in the vicinity' of a dwelling house' might cover it. I'd planned to SORN, now I'm not so sure...
Posted by: localdriver Fri, 2 Aug 2019 - 16:57
Post #1504776
The requirement for a valid SORN is that the vehicle must not be used or kept on a public road - s.31B, (3).Vehicles Excise & Registration Act 1994. The reference to 'dwelling house' is in respect of the authority to clamp or remove unlicensed vehicles that are not SORN or otherwise exempt.
Posted by: markadams Fri, 2 Aug 2019 - 17:05
Post #1504778
What does the `normally enjoyed` mean
Yep, I’ve lived in Leam since 1992......
I’ll free some inbox, most regulars keep it full to stop incessant messages that should be dealt with on the forum.
you have been inboxed
Posted by: markadams Fri, 2 Aug 2019 - 17:36
Post #1504786
https://i.imgur.com/EUtKi9g.jpg
https://imgur.com/gallery/npalVRN
I have permission by way of a car parking pass to park my vehicle on this land which is clearly private land as it states.
So how can they clamp?
Any anyway, where am i going with this, i clearly need to write to someone, but who is that someone? Is it the dvla as the instructed NSl to clamp?
I pay quarterly to park in there at a reduced rate as a tenant of the flats. If you provide your tenancy letter and proof of who you are, you get to park there cheaply.
It sounds like 'in the vicinity' of a dwelling house' might cover it. I'd planned to SORN, now I'm not so sure...
i think youll find, as ive said, they will do as they please, and leave a judge to sort it out as to interpret their meanings.
Bascially what NSL are saying (but dvla arent but their wheelclamping section are) is that if it is on your business premises, or on your drive they wont touch you, anywhere else they will have you IF it has public access, if it is legAL TO do so i would say remove the number plates and cover up the vin, end of problem.
Posted by: 666 Fri, 2 Aug 2019 - 17:52
Post #1504794
Removing the number plates creates an offence under the Vehicle Excise and Registration Act 199/4, section 42.
Posted by: markadams Fri, 2 Aug 2019 - 17:59
Post #1504796
.......if its your land?
Posted by: 666 Fri, 2 Aug 2019 - 20:50
Post #1504844
.......if its your land?
Wherever it is.
Posted by: markadams Sun, 4 Aug 2019 - 07:16
Post #1505057
Have we run aground with this, anyone any further input?
Posted by: The Rookie Sun, 4 Aug 2019 - 07:19
Post #1505058
Let’s have the google street view links to the locations.
It’s clear to me that the vehicles were incorrectly kept while SORN, but they may have been unlawfully clamped.
Posted by: gilan02 Sun, 4 Aug 2019 - 07:28
Post #1505059
I thought the OP said the car was not SORN?
Posted by: localdriver Sun, 4 Aug 2019 - 07:47
Post #1505062
[quote name='markadams' date='Sun, 4 Aug 2019 - 08:16' post='1505057'] Have we run aground with this, anyone any further input?
As in my earlier post, it may depend on the interpretation of 'normally enjoyed only by the occupiers of one or more of those dwellings', and their expression of 'public access'. Just because the public can access (the ability to access), does not mean that they have access (the authority to access). So a car park restricted to residents only etc., may not have 'public access'.
Posted by: markadams Sun, 4 Aug 2019 - 08:12
Post #1505065
It’s clear to me that the vehicles were incorrectly kept while SORN, but they may have been unlawfully clamped.
The vehicles were not sorn but in trade ie yellow slip sent off to dvla, the dvla then dont chase any back tax as the vehicle needs not be taxed. the tax status is then in limbo until new keeper buys them, the county council have confirmed that neither location is part of the public highway, the baxter court location i have a permit to park there as posted in an earlier message and signs state private car park so therefore cannot be the highways....NSL are saying they have the ability to clamp anywhere except sorn vehicles, ones on a forecourt, or private drive.....although im not certain this is correct or should i say legal, this is what we need to find out
https://www.google.com/maps/place/Frances+Havergal+Cl,+Leamington+Spa/@52.2819804,-1.5327469,3a,75y,217.23h,67.01t/data=!3m6!1e1!3m4!1sSTXY7SE5rt1ggNhXvkPPKQ!2e0!7i13312!8i6656!4m5!3m4!1s0x48773491814841b7:0xc328869d6dc5e57c!8m2!3d52.2819948!4d-1.5331651
https://www.google.com/maps/place/Baxter+Ct,+Leamington+Spa/@52.2834126,-1.5282495,3a,75y,347.16h,75.02t/data=!3m7!1e1!3m5!1sv8V9clNCGFWWcJGX8s4rUQ!2e0!6s%2F%2Fgeo0.ggpht.com%2Fmaps%2Fphotothumb%2Ffd%2Fv1%3Fbpb%3DChAKDnNlYXJjaC5UQUNUSUxFEiAKEgm5_jfGjTR3SBHPUHlhja9PfSoKDQAAAAAVAAAAABoECFYQVg%26gl%3DGB!7i13312!8i6656!4m5!3m4!1s0x4877348dc637feb9:0x7d4faf8d617950cf!8m2!3d52.2834859!4d-1.5283555
Posted by: localdriver Sun, 4 Aug 2019 - 13:33
Post #1505111
That is why you need to establish the status of the locations. If the locations comply with Sch. 2A, 1A, (b), Vehicles Excise & Registration Act 1994, they are exempt from clamping, if the locations do not comply, they are not exempt and NSL have the ability to clamp.
Posted by: The Rookie Sun, 4 Aug 2019 - 15:32
Post #1505128
I think you’ll struggle to argue curtilage for those.... sorry I meant in trade and not SORN.
Posted by: markadams Sun, 4 Aug 2019 - 16:18
Post #1505140
That is why you need to establish the status of the locations. If the locations comply with Sch. 2A, 1A, (b), Vehicles Excise & Registration Act 1994, they are exempt from clamping, if the locations do not comply, they are not exempt and NSL have the ability to clamp.
tHE STATUS? Yes i can pay for that and will show not part of the public highway....see what the rookie says too
Do we actually have the written rule, in this very next post, for me to look at todays ruling (or indeed dvlas last ruling) that is indeed the rule/law we are trying to show is not lawful?
Just thinking ahead, how do i put them in my name, and then sorn them, and get no charge at all for ever needing to tax them....i have to send in a v62 and v890 is this the corrrect way forward
Posted by: The Rookie Sun, 4 Aug 2019 - 17:15
Post #1505147
Read up thread, they cannot clamp within the curtilage of a residence, I think you would struggle to establish they were if you decided to sue for the clamp fee back.
Posted by: localdriver Sun, 4 Aug 2019 - 18:07
Post #1505161
Public highway or not is irrelevant. Are the locations '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'? That is what needs to be established. If they are, then the vehicles cannot be clamped, if not, they can.
Posted by: PickAName Sun, 4 Aug 2019 - 20:59
Post #1505191
.......if its your land?
Wherever it is.
That would mean most bodyshops are committing multiple criminal offences every day of the week.
Posted by: The Rookie Mon, 5 Aug 2019 - 04:52
Post #1505215
Correct.....
There is nothing in the statute that specifies any derogation, clearly a car parked on private property but a place the public has access to will almost certainly be enforced, in your own or a repair garage not, in between there is a grey area.
Posted by: markadams Mon, 5 Aug 2019 - 08:57
Post #1505246
There is nothing in the statute that specifies any derogation, clearly a car parked on private property but a place the public has access to will almost certainly be enforced, in your own or a repair garage not, in between there is a grey area.
I suppose that is the point that they choose to `ignore` certain things, the guy was very good with me and gave me a bit of insight which is now apparent as i expect there would be uproar if it were follwed to the letter of the law....over coventry...and mr khans and his pals mot/repair shops... there life might be indanger !!
localdriver thankyou for explaining that clearly to me, so i would need to prove what in your eyes? What if my girlfriend lives at baxter court address and i have a permit to park?
Posted by: The Rookie Mon, 5 Aug 2019 - 09:17
Post #1505254
You'd have to prove it was within the curtilage of a residence - exactly what the statute says! If you did prove that they were wrong to clamp, if you fail to prove that they were well within their rights to. As its a drive through car parking area I very much doubt you'll persuade a court it was within such a curtilage. As it's not your business premises they could still issue a penalty notice regardless.
worth a read
https://www.hewitsons.com/latest/news/meaning-of-residential-curtilage-clarified-by-high-court
Full transcript
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2017/1493.html
Posted by: markadams Tue, 6 Aug 2019 - 07:10
Post #1505567
You'd have to prove it was within the curtilage of a residence - exactly what the statute says! If you did prove that they were wrong to clamp, if you fail to prove that they were well within their rights to. As its a drive through car parking area I very much doubt you'll persuade a court it was within such a curtilage. As it's not your business premises they could still issue a penalty notice regardless.
worth a read
https://www.hewitsons.com/latest/news/meaning-of-residential-curtilage-clarified-by-high-court
Full transcript
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2017/1493.html
Thankyou, i will say though surely if one was a car trader and lived in flats or had good reason to be there ie a girlfriends and the only place to park is indeed the car park then surely there would be grounds to say its part of the curtilage and there is no other part to park on
Posted by: The Rookie Tue, 6 Aug 2019 - 09:33
Post #1505589
If you were trading from there it would be at your premises and exempted. The rest is wishful thinking.
Posted by: markadams Wed, 7 Aug 2019 - 13:10
Post #1505918
https://i.imgur.com/ILwCf2m.jpg
hmmmm, here we go, ok whats the next move here?
Posted by: localdriver Wed, 7 Aug 2019 - 13:36
Post #1505928
They are requiring information about who was using or keeping the unlicensed vehicle, when they receive that information, the next step is often an out of court settlement offer or court proceedings to that person for that offence.
Posted by: markadams Mon, 12 Aug 2019 - 17:11
Post #1507232
https://i.imgur.com/ILwCf2m.jpg
hmmmm, here we go, ok whats the next move here?
They are requiring information about who was using or keeping the unlicensed vehicle, when they receive that information, the next step is often an out of court settlement offer or court proceedings to that person for that offence.
Yes i know this....but as you can imagine, im asking, do the very same rules apply that applied to the clamping?
Ive read the law in regard to the clamping, and we all know this inside out now....but does the VERY same apply to a car whilst in trade etc etc.
Posted by: localdriver Mon, 12 Aug 2019 - 17:30
Post #1507243
No, that letter is in respect of the offence of being the keeper of an unlicensed vehicle - s.29,(1), Vehicles Excise & Registration Act 1994. The exemption for a vehicle 'in trade' only applies if the vehicle is at business premises - s.29,(2C).
Posted by: markadams Tue, 13 Aug 2019 - 07:07
Post #1507331
No, that letter is in respect of the offence of being the keeper of an unlicensed vehicle - s.29,(1), Vehicles Excise & Registration Act 1994. The exemption for a vehicle 'in trade' only applies if the vehicle is at business premises - s.29,(2C).
So again....as the same as the clamp, i would need to prove.....??? It was business premises?...within the curtilage etc etc
Posted by: TonyS Tue, 13 Aug 2019 - 07:48
Post #1507342
I think that's two different things. Business premises would mean you were allowed to keep the vehicle without tax, and without SORN.
The "curtilage" question is about whether they're allowed to clamp and remove an untaxed vehicle, not whether tax is or is not required.
Posted by: localdriver Tue, 13 Aug 2019 - 07:50
Post #1507343
The exact s.29, (2C) exemption is 'Subsection (1) does not apply to a vehicle if the vehicle is kept by a motor trader or vehicle tester at business premises'. Nothing about curtilage etc., if the vehicle is not at business premises, it is not exempt,
Posted by: markadams Thu, 15 Aug 2019 - 10:12
Post #1507985
I do wonder, as not all motor traders have premises, where the premises can be? Of course your home is one, but what if you live in a council house say and cant run a business from there? Personally i sell from the side of the road so to speak, i dont have any issues from customers, is it legal to sell from `a pub car park` type situation ?
also where these cars were parked, i expect i would need to `prove` beyond doubt that my business was being ran from there?
Posted by: Fredd Thu, 15 Aug 2019 - 10:22
Post #1507988
I trust you have a street trading licence, then?
Posted by: markadams Thu, 15 Aug 2019 - 10:30
Post #1507990
I trust you have a street trading licence, then?
could you send me a link to the requiremtns thankyou
Posted by: localdriver Thu, 15 Aug 2019 - 10:40
Post #1507994
It would depend on the status of the premises if they are considered to be 'business premises' within the meaning of the act, where you trade from may, or may not. It would be for a court to decide if the DVLA do prosecute.
Posted by: TonyS Thu, 15 Aug 2019 - 11:24
Post #1508016
If I understand correctly, apart from those at home you keep your cars in spare spaces in various car parks where you can get access because you are friends with one or more of the residents. Is that correct, as opposed to using specific spaces that are reserved for your sole use? If so then I really struggle to see how these could possibly be seen as your business premise.
Posted by: Fredd Thu, 15 Aug 2019 - 12:05
Post #1508041
I trust you have a street trading licence, then?
could you send me a link to the requiremtns thankyou
It depends where you are - I would have expected that you'd have found out what your local authority's requirements are before going into business. AIUI in England and Wales the http://www.legislation.gov.uk/ukpga/2005/16/section/3, would apply, whereas in London it's the http://www.legislation.gov.uk/ukla/1990/7/pdfs/ukla_19900007_en.pdf. Apart from those, local authorities may have their own byelaws regulating this activity.
Posted by: markadams Fri, 16 Aug 2019 - 08:39
Post #1508327
If I understand correctly, apart from those at home you keep your cars in spare spaces in various car parks where you can get access because you are friends with one or more of the residents. Is that correct, as opposed to using specific spaces that are reserved for your sole use? If so then I really struggle to see how these could possibly be seen as your business premise.
so if you lived in a house, and your girlfriend had a place with space, and you parked there, whats the problem...also not ALL traders have a forecourt and showroom.
Posted by: nosferatu1001 Fri, 16 Aug 2019 - 08:46
Post #1508328
How are they YOUR business premises and not HER parking space?
Thats the question to answer in that case...
Posted by: localdriver Sat, 17 Aug 2019 - 14:38
Post #1508642
It may not be a problem for trading, but it is a problem for the vehicle licensing exemption.
Posted by: 666 Sat, 17 Aug 2019 - 15:59
Post #1508653
If I understand correctly, apart from those at home you keep your cars in spare spaces in various car parks where you can get access because you are friends with one or more of the residents. Is that correct, as opposed to using specific spaces that are reserved for your sole use? If so then I really struggle to see how these could possibly be seen as your business premise.
so if you lived in a house, and your girlfriend had a place with space, and you parked there, whats the problem...also not ALL traders have a forecourt and showroom.
A likely problem is that the girlfriend's lease or covenants will prohibit carrying on a business.
Posted by: markadams Tue, 20 Aug 2019 - 07:24
Post #1509113
If I understand correctly, apart from those at home you keep your cars in spare spaces in various car parks where you can get access because you are friends with one or more of the residents. Is that correct, as opposed to using specific spaces that are reserved for your sole use? If so then I really struggle to see how these could possibly be seen as your business premise.
so if you lived in a house, and your girlfriend had a place with space, and you parked there, whats the problem...also not ALL traders have a forecourt and showroom.
A likely problem is that the girlfriend's lease or covenants will prohibit carrying on a business.
So why would my house not be the same??
Posted by: Slatz Tue, 20 Aug 2019 - 08:34
Post #1509141
It may well be.
Especially if it is a new build.
Trading is often excluded in modern leases and covenants.
.
Perhaps you should check
Posted by: TonyS Tue, 20 Aug 2019 - 08:46
Post #1509147
I don't think you ever mentioned whether the spaces you use are dedicated to your use, or whether you just have a permit to use any space that happens to be free at the time.
Posted by: markadams Wed, 28 Aug 2019 - 11:45
Post #1511102
Ok so the fines have arrived for the cars that were not clamped but reported for no tax.
vehicle 1 bought by me 10.6.19 seen 17/7/19 asking for £105 = £300 a year tax
vehicle 2 bought by me 10.6.19 seen 17.7.19 asking for £49 = £145 A YEAR TAX
vehicle 3 bought by me 6.6.19 seen 17.7.19 asking for £60 = "235 a year tax
vehicle 4 bought by me 28.5.19 seen 17.7.19 asking for £46 = "125 a year tax
Can anyone explain the variation reasons, all vehicles seen on same day, all vehicles are `in trade` although we all now know on 17/7/19 they were seen on the public highway albeit a car park matters not i am still guilty of the offence.
Posted by: The Rookie Wed, 28 Aug 2019 - 11:47
Post #1511103
Different CO2 ratings? Tax amount being based on CO2 and all that.
Posted by: markadams Wed, 28 Aug 2019 - 12:03
Post #1511114
ive added the annual tax and it doesnt add up, i would have expected x months times ££ plus an admin fee, but that doesnt stack up either, and the most bizarre thing is the ones that were clamped dvla have confirmed they have no interest in the back tax and have not chased, funny old game
Posted by: markadams Wed, 28 Aug 2019 - 12:22
Post #1511122
I have contacted dvla, they state the number i called is for payment only, i said im asking how the figure was added up, they said i need to write in, write i said !! this is 2019, and it says ive got till 9/9 which is not enought time to turnaround a letter, he said well ive got 2 choices pay it or go to court.....
Posted by: nosferatu1001 Wed, 28 Aug 2019 - 12:29
Post #1511126
He is right - its their offer and their timescales. Take it or leave itl.
Posted by: markadams Fri, 27 Sep 2019 - 12:37
Post #1518654
Ok
I have recieved as you know penalties for the vehicles that were not clamped but untaxed...on a public road...as we well know.
They were marked as in trade so did not need to be taxed but we also know that on the dates of the offences they were deemed to be on the public highway.
So the offence date was 17.7.19 , after that date they were taxed and there are no concerns, prior to that date they were `in trade` AND DID NOT NEED TO BE TAXED (unless seen on a public highway)
The dvla have stated that for example with one car the fine is £46 , £16 back tax which is £125/12 X 1.5 PLUS £30 penalty making the $46.
No arguments there.
However one vehicle they want 3 months back tax, even though it was in trade, albeit seen on the highwway on 17.7.19 BUT AT NO OTHER TIME.
So have they the right to request (like they would with a normal punter) back tax back to the time it was taxed when it was in trade and did not need to be taxed (when not on a public highway)
Any law on this as i do not think iot is fair to pay 3 months back tax when they were in trade and not even in that car park for the duration so i should not pay?#
What do you guys think on this
Posted by: nosferatu1001 Fri, 27 Sep 2019 - 12:44
Post #1518658
Is it an offer to avoid prosecution? If so its their offer to make, is my understanding.
Posted by: localdriver Fri, 27 Sep 2019 - 12:50
Post #1518666
The exemption for vehicle licensing does not apply to vehicles 'in trade'. It is only if the vehicle is kept by a motor trader or vehicle tester at business premises.
The additional liability for a keeper of an unlicensed vehicle is in s.30, Vehicles Excise & Registration Act 1994.
Posted by: markadams Fri, 27 Sep 2019 - 13:33
Post #1518684
But if it is not lawful i can attend court. My point of the post is to accertain if it is indeed lawful
The additional liability for a keeper of an unlicensed vehicle is in s.30, Vehicles Excise & Registration Act 1994.
Excuse me if i havent quite followed. On 17.7.19 and from the day i bought the car the car was in trade and therefore not needed to be licenced.......( on a motor traders premises), however on 17.7.19 it wasnt on a motor traders premises and was fined (for want of a better word) for that....
But they are asking for 3 months back tax when it was `in trade` and there is NO EVIDENCE that the vehicle was on the road for all or any of that period. The vehicle therefore could well have been at a motor traders premises
So i am asking is there a law, i can read, that shows they can ask either me or general public to pay the back tax.
Are you following me now?
Posted by: localdriver Fri, 27 Sep 2019 - 13:56
Post #1518693
There are only three exemptions for the requirement for a vehicle to be licensed, s. 29, (2A),(2B) and (2C), Vehicles Excise and Registration Act 1994. None of which apply to a vehicle 'in trade'.
The keeper of an unlicensed vehicle commits the offence (off road or on road) for the period they are the keeper - the vehicle is required (unless exempt) to be licensed for that period, which is what they are claiming.
Posted by: nosferatu1001 Fri, 27 Sep 2019 - 14:44
Post #1518708
You didnt answer the question, OP
Are they offering you a settlement to avoid prosecution? Yes or No
If Yes, then my understanding is that they are entitled to make a calcualtion on what is reaosnable to request, adn your choice to accept the offer or not. If you dont, youre not challenging their offer in court, youre challenging their right to anything at all - and so far you seem to accept you dont have a defencet o that. Youre arguing how much you should be fined for it, instead.
Posted by: NewJudge Fri, 27 Sep 2019 - 15:08
Post #1518711
If their offer is in place of prosecution I don't think the DVLA will enter into protracted correspondence with you regarding the amount they are requesting. You either accept their calculation or take the matters to court. Even if someone on here tells you they are wrong and you let them know I believe they will simply discontinue correspondence and begin court proceedings.
Posted by: southpaw82 Fri, 27 Sep 2019 - 15:41
Post #1518719
If the DVLA institute court proceedings, what is the likely outcome? Is that outcome better or worse for the OP than accepting the offer?
Posted by: markadams Mon, 30 Sep 2019 - 07:52
Post #1519098
The keeper of an unlicensed vehicle commits the offence (off road or on road) for the period they are the keeper - the vehicle is required (unless exempt) to be licensed for that period, which is what they are claiming.
But we know this. we know the vehicle does not need to be licenced if held a a motor traders premieses.... which it wasnt in July (becuase the offence was in July) and this must be the case becuase all the other offences when i purchased in july are for 1 month only, but they are asking for 2 months duty, but it was legally kept during month 1 so im not sure of the legalities, ive check section 29 and i think i may have a case at court?
Guilty or non guilty is the likely outcome
Are they offering you a settlement to avoid prosecution? Yes or No
If Yes, then my understanding is that they are entitled to make a calcualtion on what is reaosnable to request, adn your choice to accept the offer or not. If you dont, youre not challenging their offer in court, youre challenging their right to anything at all - and so far you seem to accept you dont have a defencet o that. Youre arguing how much you should be fined for it, instead.
No, they are offering a settlement to avoid court not avoid prosecution. If their calculations are incorrect and they have asked for the wrong amount they cannot convict...
If it helps i have no qualms about attending court i have gone not guilty 3 times in the past and won 2 cases.
Again you havent listened or read the thread, the amount the ask for IS vel duty/12 multiplied by months owing times 1.5 plus £30 so the calculation has to be wrongUNLESS they can ask for back duty WHEN A CAR IS IN TRADE with the yellow slip sent off, i am concerned of a couple of replies on here seem a little bit facebook style which isnt good considering the great knowldeg of localdriver or the chap from my town i forget his name
Posted by: The Rookie Mon, 30 Sep 2019 - 07:55
Post #1519100
A court will fine you what a court will fine you! The sentencing guidelines suggest to me they will impose a Band A fine for each offence, that is 50% of your relevant weekly income plus costs and a surcharge of 10% of the fines (£32 minimum).
Page 135, art 2 first item. Cap is 5 times the annual duty or £1000 whichever is the greater.
https://www.sentencingcouncil.org.uk/wp-content/uploads/Sept-2015-MCSG-pdf1.pdf
Accepting DVLA's offers is likely to be cheaper, How they've worked it out is up to them, you accept or they take it to court.
Posted by: MyronAub Mon, 30 Sep 2019 - 08:20
Post #1519103
It's nothing to do with being "seen", it's a simple matter of fact; was the vehicle kept at business premises for the entire first month?
Yes, it "could" but was it?
If this is true and you can convince the court then you may be found not guilty of the offence relating to that particular vehicle. However that doesn't help with the other vehicles where you'll be found guilty of the offences and, as southpaw alluded to, you need to ask yourself whether the court is likely to fine you more or less than the DVLA settlement figure...
I suspect you are fundamentally mistaken. There is no "correct" amount, you are being offered a settlement in lieu of court proceedings, you can either accept or not, the choice is yours. At court you will be charged with vehicle offences and any previous DVLA "fine/settlement" calculation will be immaterial, it will be the court that decides the amount, not the DVLA.
In a nutshell, at court you will asked to plead guilty or not guilty to being the keeper of an unlicensed vehicle. Are you thinking of pleading not guilty on the basis that the DVLA "wrongly calculated" the fine amount?!? Can you see the absurdity of going down that route?
Posted by: markadams Mon, 30 Sep 2019 - 08:56
Post #1519109
Page 135, art 2 first item. Cap is 5 times the annual duty or £1000 whichever is the greater.
https://www.sentencingcouncil.org.uk/wp-content/uploads/Sept-2015-MCSG-pdf1.pdf
Accepting DVLA's offers is likely to be cheaper, How they've worked it out is up to them, you accept or they take it to court.
Yes correct, and its not just up to them what they do, they have explained how they have worked it out, if its been worked out wrongly and is unlawful then the prosecution must fail, come on rookie you are very very smart and must know this.
What i am trying to work out is IS IT LAWFUL to request back duty for a car that was in trade.
If you bought a car in April and got caught in July you would owe 4 months. PERIOD. No getting out of it.
But mine was in trade and was not seen on a public highway in june so i feel they would be unlawful requesting, according to their figures, back duty for june.
See what i mean?
Posted by: localdriver Mon, 30 Sep 2019 - 09:13
Post #1519114
The fact that the vehicles were 'in trade' does not mean they are exempt, they would still need to be licensed, wherever they are - on road or off road, seen or unseen, unless exempt. The keeper commits the offence of using or keeping an unlicensed vehicle, again wherever they are - on road or off road, seen or unseen, unless exempt. The DVLA claim is in response to the missing Vehicle Excise Duty for the period the vehicle was unlicensed and you were the keeper. If you can prove one of the three exemptions apply, you would not be liable.
Posted by: nosferatu1001 Mon, 30 Sep 2019 - 09:43
Post #1519129
Mark - you'd be prosecuted for the underlying offence, not for failing to pay the amount theyve requested. The amount theyve offered as settlement wouldnt enter into it, at all, to my understanding.
So youd be stuck arguing a prosecution must fail because you dont like the amount you were offered in settlement to avoid prosecution...
Posted by: The Rookie Mon, 30 Sep 2019 - 09:54
Post #1519133
Page 135, art 2 first item. Cap is 5 times the annual duty or £1000 whichever is the greater.
https://www.sentencingcouncil.org.uk/wp-content/uploads/Sept-2015-MCSG-pdf1.pdf
Accepting DVLA's offers is likely to be cheaper, How they've worked it out is up to them, you accept or they take it to court.
Yes correct, and its not just up to them what they do, they have explained how they have worked it out, if its been worked out wrongly and is unlawful then the prosecution must fail, come on rookie you are very very smart and must know this.
See what i mean?
NO, you will be prosecuted for the underlying offence, the penalty being offered by DVLA to not prosecute becomes a nullity once court proceedings start, an irrelevance.
I've shown you the sentencing guidance, where is that calculation in there (clue - it's not).
So no I don't no better than that, because you can't know better than right.
Posted by: southpaw82 Mon, 30 Sep 2019 - 10:08
Post #1519138
Guilty or non guilty is the likely outcome
You seem to have missed the point. If the likely outcome at court (whether you’re acquitted or convicted) is better than the offer then go to court. If it’s not, then don’t.
I too am not convinced by your proposition that if the offer amount is wrong then you must be acquitted.
Posted by: NewJudge Mon, 30 Sep 2019 - 11:47
Post #1519169
I think the matter of whether the amount they are requesting is correct or not is immaterial to the success or failure of a prosecution.
Let's say a driver was asked to pay £150 as a fixed penalty for a speeding offence (when the correct amount is £100). He declines and opts for a court hearing. The court may well decide that he was disadvantaged by being asked to pay the higher amount - and may even determine that the demand was unlawful - so instead fine him at the (correct) fixed penalty level (which they have the discretion to do). But any such prosecution will not "fail". By your reasoning the driver is entitled to be acquitted.
What you are suggesting is that should you be correct and the amount they have asked in settlement is incorrect that is automatically fatal to a prosecution. I would suggest it is not. They are offering you a settlement which avoids prosecution (or, as you say, "court" which amounts to one and the same). The place to argue the amount of their request is in court (and you would only do that if their settlement figure was less than the likely court penalties).
Posted by: markadams Mon, 30 Sep 2019 - 15:49
Post #1519245
(2C)Subsection (1) does not apply to a vehicle if the vehicle is kept by a motor trader or vehicle tester at business premises.
that what the law says
I think the matter of whether the amount they are requesting is correct or not is immaterial to the success or failure of a prosecution.
Let's say a driver was asked to pay £150 as a fixed penalty for a speeding offence (when the correct amount is £100). He declines and opts for a court hearing. The court may well decide that he was disadvantaged by being asked to pay the higher amount - and may even determine that the demand was unlawful - so instead fine him at the (correct) fixed penalty level (which they have the discretion to do). But any such prosecution will not "fail". By your reasoning the driver is entitled to be acquitted.
What you are suggesting is that should you be correct and the amount they have asked in settlement is incorrect that is automatically fatal to a prosecution. I would suggest it is not. They are offering you a settlement which avoids prosecution (or, as you say, "court" which amounts to one and the same). The place to argue the amount of their request is in court (and you would only do that if their settlement figure was less than the likely court penalties).
And i would suggest otheriwse
Guilty or non guilty is the likely outcome
You seem to have missed the point. If the likely outcome at court (whether you’re acquitted or convicted) is better than the offer then go to court. If it’s not, then don’t.
I too am not convinced by your proposition that if the offer amount is wrong then you must be acquitted.
Im not 100% sure but usually if the offence cannot be proved then you have to be accquitted or a different charge put to you or recharged i would say with the cortrect charge
Im very very surprised that NOBODY so far has been able to say, that for sure whether a trader with a car in trade has to pay back duty or not? one person has stated that it doesnt matter if its in trade because it still has to be taxed which i say is utter rubbish
Posted by: NewJudge Mon, 30 Sep 2019 - 15:50
Post #1519248
I think you're still missing the point. You seem to believe that this incorrect calculation (if indeed it is incorrect) renders a prosecution doomed to fail. I believe you are incorrect and relying on it may cost you dearly. Let's see what other think. By all means try to get them to revise their figures but if they won't and they take you to court I don't think the court will acquit you simply on that basis.
Posted by: localdriver Mon, 30 Sep 2019 - 16:37
Post #1519263
It is not utter rubbish, just because a vehicle is 'in trade' it is not exempt from the requirement to be licensed, there are only three exemptions in s.29, Vehicles Excise & Registration Act 1988, none of which apply to a vehicle that is 'in trade' unless the vehicle is kept by a motor trader or vehicle tester at business premises. It doesn't matter if it is on road, off road, seen or unseen, the DVLA will know if it is licensed or not.
A person convicted of using or keeping an unlicensed vehicle is liable for the outstanding duty - s.30 of the same act.
If you decided not to accept the DVLA offer and attend court, 'in trade' is not a viable defence, and as in earlier posts, the penalty could be higher than the DVLA offer - and you would then still be liable for the outstanding duty.
Posted by: southpaw82 Mon, 30 Sep 2019 - 17:31
Post #1519285
In that case, I suggest you listen to people who are. If you are charged with a criminal offence the fact that the amount set out in any settlement offer was wrong doesn’t provide you with a defence. It would only do so if the offence was “not paying this amount” - but that isn’t the offence you’d be charged with.
Edit: it might be a defence (depending on the charge) to show that nothing was owed - noting that nothing is not the same as the figure being simply wrong.
Posted by: blackcross Mon, 30 Sep 2019 - 18:30
Post #1519309
It is unarguable that “the DVLA offer was excessive” will undermine a prosecution, unless nothing was due. If you think the DVLA having a faulty abacus is going to save your bacon if you have some VEL liability then you are wrong.
If you don’t want to accept the administrative settlement then the DVLA will decide whether to prosecute you for the criminal offence.
If DVLA prosecute then the magistrates will decide whether the vehicles were VEL exempt throughout the period alleged. You appear to think you can convince them that all vehicles were exempt throughout.
If you succeed in that it will be happy days. If you fail they will sentence in accordance with the guidelines. They will rightly ignore whatever administrative settlement the DVLA has offered you. Having lost a contested trial you would be liable for DVLA costs and won’t get a discount on sentence.
It is clear that you have a firm and fixed view on the relevant law, and prefer it to the advice offered here. That is your right, and it seems likely that you are determined to have your day in court.
Posted by: The Rookie Tue, 1 Oct 2019 - 08:07
Post #1519368
You knew back in the first post you'd committed the offences, so why now are you questioning it?
Being `in trade` as i recall means i dont have to tax insure the car etc. If the car needs moving, or for demonstration i use trade plates.
I can only keep 7 cars at home so i use a couple of private parking areas. I have a friend with a flat in each so use the many many available parking spaces as i dont have premises. Private car par, private land.
So i went to my cars yesterday and the cars had been clamped, clearly reported to dvla. Maybe dvla hadnt checked they were in trade and it stated they had been reported to dvla and clamped. The company that clamped them i believe is NSL and they have a compound in west bromwich.
A quick look on the gov.uk website tells me these cars need to be sorned, but how can i take a sorned car onto the road for a text drive? Or for an mot?
So this morning i need to make some calls and am asking your incredible brains where i stand with this.
i have read this....
https://www.gov.uk/sorn-statutory-off-road-notification/motor-traders
It doesnt make good reading especially as i dont have `business premises` which actually means i cant park them at home without SORN, and if i do and their on a test drive im then also comitting anoffence
Posted by: MyronAub Tue, 1 Oct 2019 - 08:24
Post #1519370
You yourself said the vehicles were not at business premises so clearly that exemption does not apply in your case.
What you repeatedly seem unable to grasp is that the offence you would be charged with in court is "being the keeper of an unlicensed vehicle." By your own admission the exemptions do not apply to you and so you will almost certainly be found guilty of being the keeper of an unlicensed vehicle. Being found guilty will lead to a penalty of "the greater of £1,000 or five times the amount of tax chargeable."
You will not be charged with "failing to pay £xxx back duty due to DVLA", I'm not sure how many times people can tell you the same thing.
Duty will be due from when the last tax expired. The law then says that if you are exempt from paying the duty then it is up to you to provide evidence "that is sufficient to raise an issue with respect to that exception; but where evidence is so adduced it is for the prosecution to prove beyond reasonable doubt that the exception does not apply." I would suggest that the prosecution would easily prove the exception does not apply to vehicles parked at your friend's flat...
Posted by: markadams Wed, 2 Oct 2019 - 08:30
Post #1519641
It is not utter rubbish, just because a vehicle is 'in trade' it is not exempt from the requirement to be licensed, there are only three exemptions in s.29, Vehicles Excise & Registration Act 1988, none of which apply to a vehicle that is 'in trade' unless the vehicle is kept by a motor trader or vehicle tester at business premises. It doesn't matter if it is on road, off road, seen or unseen, the DVLA will know if it is licensed or not.
A person convicted of using or keeping an unlicensed vehicle is liable for the outstanding duty - s.30 of the same act.
If you decided not to accept the DVLA offer and attend court, 'in trade' is not a viable defence, and as in earlier posts, the penalty could be higher than the DVLA offer - and you would then still be liable for the outstanding duty.
I need to get this perfectly stright.
Are you telling me that a motor trader who has a vehicle in trade and is on his premises and has sent off the yellow slip to dvla is commiting an offence relating to road fund licence?
If thats the case why on earth arent they all prosecuted? Its that im trying to get to the bottom of ?
You yourself said the vehicles were not at business premises so clearly that exemption does not apply in your case.
You havent read the post correctly. On july 17th the vehicle was not on my premises, where does it state or is there evidence that for the rest of the time it was not?
What you repeatedly seem unable to grasp is that the offence you would be charged with in court is "being the keeper of an unlicensed vehicle." By your own admission the exemptions do not apply to you and so you will almost certainly be found guilty of being the keeper of an unlicensed vehicle. Being found guilty will lead to a penalty of "the greater of £1,000 or five times the amount of tax chargeable."
You will not be charged with "failing to pay £xxx back duty due to DVLA", I'm not sure how many times people can tell you the same thing.
I wont be charged with anything as you cant be charged for this offence.
Duty will be due from when the last tax expired. The law then says that if you are exempt from paying the duty then it is up to you to provide evidence "that is sufficient to raise an issue with respect to that exception; but where evidence is so adduced it is for the prosecution to prove beyond reasonable doubt that the exception does not apply." I would suggest that the prosecution would easily prove the exception does not apply to vehicles parked at your friend's flat...
I am asking if there is a law which nobody including yourself has shown me, even dvla dont know, if a trader needs to pay the back tax to the point of purchase.
Posted by: The Rookie Wed, 2 Oct 2019 - 08:41
Post #1519642
You've been told where the law is for backtax, it makes no exemptions or variations for traders.
Others aren't prosecuted because they comply with the exemption and keep them on their premises, something you conveniently (for you) gloss over above.
Posted by: nosferatu1001 Wed, 2 Oct 2019 - 10:35
Post #1519663
Indeed OP - you keep omitting that
You were not exempt
You didnt keep them on business premises, and you admitted such. So the offence appears complete to me.
Now your quibble seemed to be that theyre charging you more for one than the other, in their offer to avoid prosecution. But thats not really anything you can argue about: you accept their offer, or you dont
If you dont, it goes to court, at which point the sentencing guidelines suggest the fine will be MUCH higher.
Posted by: Logician Wed, 2 Oct 2019 - 10:52
Post #1519668
Well, you could try to persuade DVLA they have got it wrong, but that is your only hope. If it goes to court, the court will just not be interested in that, it is an offer made by DVLA to avoid prosecution, if it is not accepted then prosecution takes place and when it comes to sentence the court guidelines will apply, and that's an end to it.
Posted by: TonyS Wed, 2 Oct 2019 - 11:58
Post #1519687
I don't think there is one that states that. The relevant law was linked early in the thread https://www.legislation.gov.uk/ukpga/1994/22/section/29. In that section it states the penalty as a Level 3 fine, or five times the annual VED, whichever is greater. In other words it seems to cite a standard penalty and doesn't as far as I can see account for either how long you've owned the vehicle, or how long it's been untaxed, or how long it's been kept off your premises. So it looks to me as if the idea of paying back tax is purely a DVLA out of court offer.
Posted by: Logician Wed, 2 Oct 2019 - 12:51
Post #1519697
No, the penalty is for committing the offence, but the VED has still to be paid. Paying the penalty does not settle the matter, in the same way as if you steal a bottle of whisky, and you get fined for it, it does not mean you can keep the whisky. If you have drunk the whisky, you will be ordered to pay compensation for it.
Posted by: localdriver Wed, 2 Oct 2019 - 14:06
Post #1519725
If the keeper is convicted of being the user or keeper of an unlicensed vehicle - s.29, Vehicles Excise & Registration Act 1994, there is the additional liability for the outstanding duty - s.30, of the same act. If a trader is the keeper, and convicted, they would be liable the same as any other keeper.
Posted by: localdriver Wed, 2 Oct 2019 - 15:27
Post #1519744
The exemption for traders only applies if the vehicle is kept by a motor trader or vehicle tester at business premises. If the vehicle is not kept at business premises, although the vehicle may be 'in trade', the exemption does not apply and the trader would be liable as any other keeper would be.
Posted by: markadams Wed, 2 Oct 2019 - 17:14
Post #1519765
The exemption for traders only applies if the vehicle is kept by a motor trader or vehicle tester at business premises. If the vehicle is not kept at business premises, although the vehicle may be 'in trade', the exemption does not apply and the trader would be liable as any other keeper would be.
Im not trying to be awkard or flippant and maybe im missing something here, but the dvla have explained how they come to the figure....the only way they could have come to it is if i have to pay back 2 months backtax, june and july, i bought it in june and in july it was seen on a road.
Therefore it was exempt for june becuase they cannot bring a case against june that it was NOT on a public road in June....thats what i am trying to get at.
Posted by: southpaw82 Wed, 2 Oct 2019 - 17:16
Post #1519766
Therefore it was exempt for june becuase they cannot bring a case against june that it was NOT on a public road in June....thats what i am trying to get at.
Even if that is so, where does it leave you? You accept the offer believing it to be wrong, you ask them to amend it hoping they agree and don’t simply withdraw it or you go to court where their offer becomes moot.
Posted by: localdriver Wed, 2 Oct 2019 - 17:27
Post #1519770
The offence is being the person who uses or keeps an unlicensed vehicle. It doesn't matter where it is, on-road, off-road, locked in a private garage etc., unless it is exempt, a registered vehicle is required to be licensed.
Posted by: Logician Wed, 2 Oct 2019 - 22:44
Post #1519826
If say a member of the public has a vehicle on SORN and it is seen on the road in June, the back tax demanded is not just for June, it is back to the time when it was last fully taxed. It is no use claiming it was off the road prior to June.
You are being dealt with in the same way, back tax demanded from the time the car was last taxed.
Posted by: nosferatu1001 Thu, 3 Oct 2019 - 07:15
Post #1519842
Therefore it was exempt for june becuase they cannot bring a case against june that it was NOT on a public road in June....thats what i am trying to get at.
Yes, and thats because you owe from when the vehicle SHOULD HAVE been taxed - june - onwards. 2 months.
Once you lost the exemption - and it sounds like it was never gained - you lose it back to the start. Not from that point forward
That appears to be your fundamental failure to understand: they get you for the whole period.
Posted by: blackcross Thu, 3 Oct 2019 - 08:12
Post #1519852
Under SORN the vehicle not being on a public road is irrelevant. Keep it on private land and it still needs to be licensed/taxed unless a SORN is in force.
For traders there seems to be a concession that as long as the private land is also business premises an exemption will apply. However you have admitted that the land fails the business premises test, so the exemption does not apply.
While you might think DVLA are pulling a fast one there is no evidence that they are doing anything than acting properly. In any event, this will shortly become academic as their patience will run out and you will be off to court, where you can try your argument on the magistrates.
Posted by: TheDisapprovingBrit Thu, 3 Oct 2019 - 08:13
Post #1519853
Therefore it was exempt for june becuase they cannot bring a case against june that it was NOT on a public road in June....thats what i am trying to get at.
They don't need to do anything "against june". If it goes to court, the ONLY thing they need to show is "This vehicle was on a public road at some point and was untaxed" and if you're found guilty of that, you'll be looking at the greater of £1000 or 5x the ANNUAL tax rate. Any previous "offer" goes out the window the moment you opt for court. It seems you don't dispute that the vehicle was in fact on the road and untaxed, so paying a month or two of tax that you don't think you should have been caught for is still going to be massively cheaper than paying the actual fine if it goes to court.
Posted by: The Rookie Thu, 3 Oct 2019 - 08:52
Post #1519858
Oh dear
No they just have to show it was untaxed and not SORN/exempt, they don't have to show it was on the road at all.
No, he'll be lo0king at 50% of his RWI per offence, those are the maximum, the fine is means based.
They (not the) wasn't on the road though, they were not on the business premises which is part of the exemption criteria for traders.
I agree paying the penalty would be cheaper though!
Posted by: MyronAub Thu, 3 Oct 2019 - 09:21
Post #1519861
They do not have to "bring a case against June."
Vehicle tax is payable from when the last tax expired unless the vehicle is exempt. Your vehicle was caught outside business premises and so lost its exemption. As soon as the exemption was lost the entire tax due from when it last expired becomes payable, it's as simple as that. The law that states this is the "Vehicle Excise and Registration Act 1994."
I think TonyS got it right:
(a)level 3 on the standard scale, or
(b)five times the amount of the vehicle excise duty chargeable (an amount equal to the annual rate of duty) ,whichever is the greater.
Posted by: TheDisapprovingBrit Thu, 3 Oct 2019 - 13:08
Post #1519905
As the vehicles are "in trade", would that be calculated as OP's RWI, or the companies RWI? That could make a significant difference to the amount in play.
Posted by: The Rookie Thu, 3 Oct 2019 - 14:35
Post #1519943
(a)level 3 on the standard scale, or
(b)five times the amount of the vehicle excise duty chargeable (an amount equal to the annual rate of duty) ,whichever is the greater.
Nope
https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/offences-appropriate-for-imposition-of-fine-or-discharge/part-2-offences-concerning-the-vehicle/#no-excise-licence
The L3 or 5x is clearly under the column titled MAXIMUM.
Then fine starting points are
A (1-3 months unpaid) B (4-6 months unpaid) C (7-12 months unpaid) and consider adding unpaid duty.
Posted by: andy_foster Sun, 6 Oct 2019 - 15:26
Post #1520546
Are you telling me that a motor trader who has a vehicle in trade and is on his premises and has sent off the yellow slip to dvla is commiting an offence relating to road fund licence?
Drugs are bad, m'kay?
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