Is this Private road a public Highway?

Is this Private road a public Highway?

Author
Discussion

anonymous-user

53 months

Saturday 13th January 2018
quotequote all
So now you are a fugitive, eh? Living on your wits as you evade the evil minions of the faceless law. Your story is bonkers. Stop to check the noise, fine. But why jack the car up and take the wheel off? You can see in one second if a tyre is flat. Why not just pay up and next time park somewhere else when shopping.

Gavia

7,627 posts

90 months

Saturday 13th January 2018
quotequote all

deadpixel said:
Please believe me, I had no intention to come across as condescending, my sole intention was to keep things simple and no wasting people time by providing immaterial information and try avoid irrelevant posts from nonconstructive individuals saying, "You're guilty, pay up,' and discussing the size of property in the neighborhood.

And no, they don't the car, its in a locked garage for the time being.
If they haven’t got your car, how can they have committed an offense (sic) as stated below?

This whole thread is a load of made up bks isn’t it.

deadpixel said:
The "Technicality" that you refer to is whether the enforcement agents have committed and offence under the "Taking Control of Goods Regulations 2013"

Edited by deadpixel on Saturday 13th January 15:51

akirk

5,376 posts

113 months

Saturday 13th January 2018
quotequote all
just for interest, private companies can charge tolls on the public highway...
plenty of examples
therefore the existence of a toll doesn't itself define public highway / private road

Gavia

7,627 posts

90 months

Saturday 13th January 2018
quotequote all
akirk said:
just for interest, private companies can charge tolls on the public highway...
plenty of examples
therefore the existence of a toll doesn't itself define public highway / private road
Not least the M6 Toll as a pretty obvious example.

anonymous-user

53 months

Saturday 13th January 2018
quotequote all
deadpixel said:
The "Technicality" that you refer to is whether the enforcement agents have committed and offence under the "Taking Control of Goods Regulations 2013"

Edited by deadpixel on Saturday 13th January 15:51
Which part of it (as in, quote the paragraph you think is in breach)?

Red Devil

13,055 posts

207 months

Saturday 13th January 2018
quotequote all
deadpixel said:
Evanivitch said:
Who maintains it?

I'm interested in what your objective is. If it's to permit activities like driving without a license, insurance or whilst in the influence then due to the public access I don't think you'd be permitted to do so.
My objective is to determine if a private enforcement agent is legally allowed to clamp your vehicle on this road (with no warrant for a dubious parking charge). They are only allowed to secure them on a highway or your driveway, not private property as defined in the Tribunals, Courts and Enforcement Act 2007.

http://www.legislation.gov.uk/ukpga/2007/15/schedu...
The Act you quoted neither mentions nor defines private property.
Schedule 12 Part 1 Section 9 simply specifies where an enforcement agent may take control.

What is the difference between a private street and a highway?
Roads/footways and footpaths can ONLY exist in one of three distinct legal types:-
1. A highway maintainable at the public expense
2. A highway maintainable at private expense
3. A private street/footway or footpath
No 3 is one which the public have no rights to use unless permission is given by the owner. ie these have the same status as a path or drive at someone’s home.

The difference between 1 and 2 is who maintains them. In all other respects they are identical.
The above means it is the RIGHT of the public to use a road/footway/footpath that is crucial not who maintains it

My guess FWIW is that College Road will fall into category #2.
You can't park a SORNed vehicle on it which lends credence to it having highway status.
I reckon your question is best directed at the Dulwich Estate.
I'm sure it has a legal department which will have had to grapple with status issues before now.

akirk

5,376 posts

113 months

Saturday 13th January 2018
quotequote all
Gavia said:
akirk said:
just for interest, private companies can charge tolls on the public highway...
plenty of examples
therefore the existence of a toll doesn't itself define public highway / private road
Not least the M6 Toll as a pretty obvious example.
even better is Eynsham toll which has its own act of parliament and where the owners pay no tax on the takings!
http://www.oxfordmail.co.uk/news/4776705.Eynsham_t...Villagers_disappointed_as_it_goes_for_1_08m_at_auction/

Chrisgr31

13,440 posts

254 months

Saturday 13th January 2018
quotequote all
Gavia said:
If they haven’t got your car, how can they have committed an offense (sic) as stated below?
The suggestion is that they have committed an offense under the taking control of goods legislation.
Enforcement agents may not physically take a car, they take control of it by clamping it. Whats not clear is if the car is still clamped and the OP has moved it whilst clamped in to a garage, or if he has removed the clamp.

Gavia

7,627 posts

90 months

Saturday 13th January 2018
quotequote all
Chrisgr31 said:
Gavia said:
If they haven’t got your car, how can they have committed an offense (sic) as stated below?
The suggestion is that they have committed an offense under the taking control of goods legislation.
Enforcement agents may not physically take a car, they take control of it by clamping it. Whats not clear is if the car is still clamped and the OP has moved it whilst clamped in to a garage, or if he has removed the clamp.
How do you know that? He was dripfeeding info as part of a trolling thread, it has given up having been called out on the inconsistencies.

PS - it’s offence with a c

deadpixel

Original Poster:

23 posts

102 months

Saturday 13th January 2018
quotequote all
Red Devil said:
The Act you quoted neither mentions nor defines private property.
Schedule 12 Part 1 Section 9 simply specifies where an enforcement agent may take control.

What is the difference between a private street and a highway?
Roads/footways and footpaths can ONLY exist in one of three distinct legal types:-
1. A highway maintainable at the public expense
2. A highway maintainable at private expense
3. A private street/footway or footpath
No 3 is one which the public have no rights to use unless permission is given by the owner. ie these have the same status as a path or drive at someone’s home.

The difference between 1 and 2 is who maintains them. In all other respects they are identical.
The above means it is the RIGHT of the public to use a road/footway/footpath that is crucial not who maintains it

My guess FWIW is that College Road will fall into category #2.
You can't park a SORNed vehicle on it which lends credence to it having highway status.
I reckon your question is best directed at the Dulwich Estate.
I'm sure it has a legal department which will have had to grapple with status issues before now.
Thanks for your post, I believe the below covers this.

Section 328(1) of the Highways Act 1980 provides that in that Act, except where the context otherwise requires, "highway" means the whole or part of a highway other than a ferry or waterway. Section 329(1) defines "bridleway," "carriageway," "footpath" and "footway" respectively as meaning a way over which the public have a right of way on horseback, for the passage of vehicles or on foot only. As the term "highway" is not itself defined, it is necessary to apply the common law meaning of the word:
"A highway is a way over which there exists a public right of passage, that is to say a right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance." (Halsbury’s Laws 21[1]).

From that I determine that as you have to pay to use the road, it could not indeed be classed as a Highway.

On this basis, an Enforcement Agent can only legally clamp your car in a highway or on land where you usually live or carry on trade or business, so by clamping a vehicle in this instance, they would be breaking the law.

Paragraph 9 of the Tribunals Courts and Enforcement Act 2007 states;

9 An enforcement agent may take control of goods only if they are—

(a) on premises that he has power to enter under this Schedule, or
(b) on a highway.


Clamping a car on private land in circumstances other than the above commits an offence under section 54 of the Protection of Freedoms Act 2012, which states;

54 Offence of immobilising etc. vehicles

(1) A person commits an offence who, without lawful authority—

(a) immobilises a motor vehicle by the attachment to the vehicle, or a part of it, of an immobilising device, or
(b) moves, or restricts the movement of, such a vehicle by any means, intending to prevent or inhibit the removal of the
vehicle by a person otherwise entitled to remove it.

I think that all joins up sufficiently assuming it all makes sense and is accurate, I would be interested to hear constructive thoughts on the matter.

Sebring440

1,926 posts

95 months

Saturday 13th January 2018
quotequote all
OP:

You wear mustard coloured shirts, pink corduroy trousers, and utter "Now look here, my good fellow" stuff?


Red Devil

13,055 posts

207 months

Saturday 13th January 2018
quotequote all
akirk said:
Gavia said:
akirk said:
just for interest, private companies can charge tolls on the public highway...
plenty of examples
therefore the existence of a toll doesn't itself define public highway / private road
Not least the M6 Toll as a pretty obvious example.
even better is Eynsham toll which has its own act of parliament and where the owners pay no tax on the takings!
http://www.oxfordmail.co.uk/news/4776705.Eynsham_t...Villagers_disappointed_as_it_goes_for_1_08m_at_auction/
Swinford Bridge is not unique.

There is another privately owned toll bridge across the Thames: Whitchurch Bridge - https://goo.gl/maps/UJWwG6Q5fSS2
It too was created under an Act of Parliament in the reign of George III but it doesn't appear to have the same tax perks.
https://whitchurchbridge.com/03_WBCAct1792.pdf
Updated by a further Act under the current monarch.
https://whitchurchbridge.com/04_WBCAct1988.pdf

Also with an Act from the reign of George III: Whitney Bridge at Whitney-on-Wye - https://goo.gl/maps/hUh8CpbUEtx
This one does have the same tax breaks as Swinford.
http://www.whitneybridge.co.uk/content/media/Act_o...
http://www.whitneybridge.co.uk/content/media/Tollb...

Dunham Bridge across the Trent is much more recent: Queen Victoria - https://goo.gl/maps/JRXDk4xpi342
The current deck is very diffferent from the original structure though - http://dunhambridge.co.uk/index.php

Fastpedeller

3,848 posts

145 months

Saturday 13th January 2018
quotequote all
OP - being pragmatic, the approach I'd take is to just pay the fee. Whilst it would rile me also, and I can understand why you stopped the vehicle, unfortunately the people making the charge have no humanity or understanding - "you've broken the rules, end of story" is their stance and I'm sure will remain so. It looks like you are trying to ensure they can't take your car, but surely they will send in bailiffs to seize any goods, so the costs will only rise.

akirk

5,376 posts

113 months

Saturday 13th January 2018
quotequote all
deadpixel said:
Thanks for your post, I believe the below covers this.

Section 328(1) of the Highways Act 1980 provides that in that Act, except where the context otherwise requires, "highway" means the whole or part of a highway other than a ferry or waterway. Section 329(1) defines "bridleway," "carriageway," "footpath" and "footway" respectively as meaning a way over which the public have a right of way on horseback, for the passage of vehicles or on foot only. As the term "highway" is not itself defined, it is necessary to apply the common law meaning of the word:
"A highway is a way over which there exists a public right of passage, that is to say a right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance." (Halsbury’s Laws 21[1]).

From that I determine that as you have to pay to use the road, it could not indeed be classed as a Highway.

On this basis, an Enforcement Agent can only legally clamp your car in a highway or on land where you usually live or carry on trade or business, so by clamping a vehicle in this instance, they would be breaking the law.

Paragraph 9 of the Tribunals Courts and Enforcement Act 2007 states;

9 An enforcement agent may take control of goods only if they are—

(a) on premises that he has power to enter under this Schedule, or
(b) on a highway.


Clamping a car on private land in circumstances other than the above commits an offence under section 54 of the Protection of Freedoms Act 2012, which states;

54 Offence of immobilising etc. vehicles

(1) A person commits an offence who, without lawful authority—

(a) immobilises a motor vehicle by the attachment to the vehicle, or a part of it, of an immobilising device, or
(b) moves, or restricts the movement of, such a vehicle by any means, intending to prevent or inhibit the removal of the
vehicle by a person otherwise entitled to remove it.

I think that all joins up sufficiently assuming it all makes sense and is accurate, I would be interested to hear constructive thoughts on the matter.
do you really want constructive thoughts, or just to feel that you are right?
as has been shown with a number of examples above there are plenty of examples of public highways with tolls on them, so your assumption that as you have to pay it is not a highway must surely be wrong... If you really believe that you are right, then get a lawyer and take them to court, but you seem to be taking random bits of legislation and drawing your own assumptions from them - this really won't go well wink I would suggest that paying your fines might be the cheapest and easiest option...

Red Devil

13,055 posts

207 months

Saturday 13th January 2018
quotequote all
deadpixel said:
From that I determine that as you have to pay to use the road, it could not indeed be classed as a Highway.
I think you may be pinning your hopes on a potentially shaky foundations.
Payment is not the relevant test. It is whether the public has a right of way.
See Suffolk County Council v Mason [1979] AC 705

Have you done what I suggested and contacted the Dulwich Estate?
They are more likely to know the score than you or I.





deadpixel

Original Poster:

23 posts

102 months

Sunday 14th January 2018
quotequote all
Red Devil said:
I think you may be pinning your hopes on a potentially shaky foundations.
Payment is not the relevant test. It is whether the public has a right of way.
See Suffolk County Council v Mason [1979] AC 705

Have you done what I suggested and contacted the Dulwich Estate?
They are more likely to know the score than you or I.
It is possible I am indeed. I contacted the estate last week, their surveyor will be back in next week so I will call again.

Thanks.

Edited by deadpixel on Sunday 14th January 01:31

Gavia

7,627 posts

90 months

Sunday 14th January 2018
quotequote all
deadpixel said:
It is possible I am indeed. I contacted the estate last week, there surveyor will be back in next week so I will call again.

Thanks.
Why are you asking a surveyor?

Oh and it’s their not there

Red Devil

13,055 posts

207 months

Sunday 14th January 2018
quotequote all
deadpixel said:
It is possible I am indeed. I contacted the estate last week, their surveyor will be back in next week so I will call again.

Thanks.
It will need to be somebody within DE with the appropriate legal expertise in the relevant field.
As Gavia alluded to, I also have my doubts whether a surveyor will be the right person.
If so, they may know who is though.

essayer

9,010 posts

193 months

Sunday 14th January 2018
quotequote all
I suspect ‘enforcing a county/high court judgement’ counts as reasonable authority under the clamping laws

Seriously, you won’t beat the system. Why won’t you pay the fine/fees, then appeal it using whatever means ?

herewego

8,814 posts

212 months

Sunday 14th January 2018
quotequote all
Have you appealed the case to the adjudicator? If the adjudicator has found against you then you should just pay the fine and move on.