Memorandum by the Department of Environment, Transport
and the Regions
1997 (S.I. 1997/2439)
The Department has been asked by the Committee to submit
a Memorandum on two points relating to this Instrument.
(1) The effect of regulation 4(1) and (2)(h) is that
the Regulations will not apply in relation to a vehicle which
is stationary at a time when, having been immobilised or removed,
less than 24 hours have elapsed since it was released or removed.
In a case where a vehicle which is not immobilised is removed
under regulation 9(1)(a) and (3), is it intended that the claimant
should be precluded from taking possession of the vehicle under
regulation 12 until 24 hours have elapsed since it was removed?
If so, explain the justification for this restriction.
2. No such restriction was intended. Regulation 4 lists the
circumstances in which the Regulations are not to apply in relation
to a vehicle. These include (paragraph 2(h)) the circumstances
where the vehicle is stationary at a time when, having been immobilised
or removed under the Regulations, less than 24 hours have elapsed
since it was released or removed. The purpose of this exemption
is to allow a short period during which a person whose vehicle
has been immobilised or removed can take steps to obtain a licence
or take the vehicle off the road without the risk of its being
clamped or towed away a second time.
3. Regulation 12 specifies the conditions which have to be
satisfied before a person can reclaim a vehicle that has been
removed from the road and passed to a custodian. It is possible
to argue that a vehicle that had been removed in circumstances
where regulation 4(2)(h) did not apply would, at any time that
it was stationary during the next 24 hours, become a vehicle in
relation to which the circumstances specified in regulation 4(2)(h)
applied and therefore a vehicle to which regulation 12 did not
apply. In the opinion of the Department this would be an over-literal
interpretation which would produce anomalous results. If a vehicle
is not a vehicle in relation to which the Regulations have been
disapplied by regulation 4 at the time it was removed, it should
not be treated as subsequently coming within regulation 4 so as
to preclude the owner from reclaiming it at any time. The Department
will nevertheless consider whether the Regulations should be clarified
so as to remove all scope for such arguments.
(2) Given that regulation 6(1)(b)(ii) provides for
the release of a vehicle which, at the time it was immobilised,
was an exempt vehicle, ought not regulation 17(1)(a)(ii) to have
provided for this exemption to be a ground for claiming a refund
4. Although it is unlikely that an exempt vehicle would be
immobilised because authorised persons are instructed, before
taking any action to immobilise or remove a vehicle, to check
the vehicle register (which should show whether a vehicle belonged
to an exempt tax class), the Regulations do nevertheless cater
for the possibility.
5. Regulation 6(1)(b)(ii) requires a vehicle to be released
where an authorised person is satisfied that the vehicle was immobilised
in any of the circumstances specified in regulation 4(2) or that
the vehicle was at the time it was immobilised an exempt vehicle.
The circumstances specified in regulation 4(2) include (sub-paragraph
(b)) that the vehicle is an exempt vehicle and a current nil licence
is displayed on it. Where it is claimed that the vehicle was immobilised
or removed in those circumstances, regulation 17(1)(a)(ii) will
apply. Where, however, the vehicle was an exempt vehicle was an
exempt vehicle and a nil licence was not displayed on it, the
circumstances specified in regulation 4(2) will not be fulfilled
and regulation 17(1)(a)(ii) will not apply.
6. The basis of the distinction is that, if a nil licence
is displayed on a vehicle, it will be seen to be exempt, but not
if one were not so displayed. Nevertheless if experience shows
that there could be hard cases where this distinction would operate
unfairly the Department will consider whether the Regulations
should be amended accordingly.
25th November 1997