Vehicle Inspectorate v Bruce Cook Road Planing Ltd & Anor

The appeal concerned the scope of the exception in Article 4(6) of Council Regulation (E.E.C.) No. 3820/85 (as read with Article 3 of Regulation 3821/85 and Article 15(2) of Regulation 3821/85 and section 97(1)(a)(iii) of the Transport Act 1968) which exempts from tachograph requirements vehicles "used in connection with" highway maintenance and control. The House of Lords held that the derogation must be interpreted narrowly and in light of the Regulations' objectives of harmonising competition, improving working conditions and enhancing road safety. Transport of a substantial road-planing machine from one place to another prior to commencement of works did not establish a sufficiently close or ancillary connection with highway maintenance to attract the Article 4(6) exception. The appellant bore the evidential burden to show that the vehicle was being used at the relevant time within the exception and the factual findings were insufficient to do so.

This is an appeal from a prosecution under section 97(1)(a)(iii) of the Transport Act 1968 for failing to keep a current tachograph record in accordance with Article 15(2) of Council Regulation (E.E.C.) No. 3821/85. The vehicle was a tipper lorry and trailer carrying a road planing machine; the justices found that it was transporting the planer "to a site so that it could be operated". The justices dismissed the informations on the basis that Article 4(6) of Regulation 3820/85 (exempting vehicles "used in connection with" highway maintenance) applied. On a case stated the Divisional Court took the opposite view and directed convictions, and the company appealed to the House of Lords.

The central issues were:

• whether carriage of the planing machine en route to a site so that it could later be operated was "in connection with" highway maintenance within Article 4(6);
• whether the derogation should be given a wide or narrow construction in light of the Regulations' objectives; and
• whether the facts found were sufficient to establish the exception.

The House of Lords reviewed relevant European Court of Justice authority (including British Gas, Goupil and Mrozek) and concluded that Article 4(6) must be confined to uses closely connected and ancillary to the public service activities listed, typically involving short distances or movements integral to on-site works or local deployment from a nearby depot. Transporting heavy plant over potentially long distances prior to the commencement of works is indistinguishable from ordinary commercial carriage and risks subverting harmonisation of competition and road safety aims. The appellant failed to show a sufficiently close connection and the factual findings were inadequate to support the justices' conclusion. The appeal was dismissed.

Appeal dismissed. The House of Lords held that Article 4(6) must be interpreted narrowly in light of the Regulations' objectives (harmonisation of competition, working conditions and road safety); carriage of substantial plant en route to a site for future use did not demonstrate the requisite close or ancillary connection with highway maintenance to attract the exception, and the appellant had not discharged the burden of proof given the inadequate factual findings.

At first instance the justices (magistrates) dismissed the informations, finding the vehicle use within Article 4(6). On a case stated the Divisional Court reversed that decision and returned the case to the Magistrates' Court with a direction to convict. The company appealed to the House of Lords which dismissed the appeal. (No neutral citations for the Divisional Court stage are given in the judgment.)