Vehicle Inspectorate v Bruce Cook Road Planing Ltd

The tachograph exemption for vehicles used in connection with highway maintenance requires a close connection between the vehicle’s journey and the maintenance operation. The transport must be ancillary to the public service and the exemption must remain consistent with road safety, drivers’ working conditions and fair competition.

Short, local journeys undertaken during the maintenance operation may qualify. These may include removing material, returning empty or travelling from a local depot for use that day. By contrast, merely transporting equipment from one place or site to another before work begins is ordinary carriage by road and does not qualify without evidence establishing the required close connection.

A road-planing company and its driver were prosecuted under section 97(1)(a)(iii) of the Transport Act 1968 for failing to use a tachograph while a tipper lorry and trailer carried a road planer to a site. They contended that the journey fell within the exception in Article 4(6) of E.C. Regulation 3820/85 for vehicles used in connection with highway maintenance.

The justices dismissed the informations. On a case stated, the Divisional Court held that the exception did not apply and returned the case to the Magistrates’ Court with a direction to convict. The company appealed to the House of Lords. The central issue was whether transporting the planer to an unidentified site for later operation had a sufficiently close connection with highway maintenance.

1. Appeal dismissed unanimously. Lord Hope of Craighead and Lord Clyde delivered the principal speeches. Lord Steyn and Lord Hutton agreed with both. Lord Slynn of Hadley reached the same conclusion.

2. Per Lord Hope and Lord Clyde, Article 4(6) of E.C. Regulation 3820/85 is a derogation from the general tachograph regime. Its scope must therefore be confined to what is necessary for the listed public-interest services. It must be construed consistently with the regulation’s purposes of harmonising competition, improving working conditions and promoting road safety.

3. Per Lord Hope, some travel outside the precise highway-maintenance site may fall within the exemption. Journeys undertaken during the work to remove material and return empty may qualify. Short journeys from a local yard or depot to enable a vehicle to be used in maintenance that same day may also be ancillary to the maintenance operation.

4. Per Lord Hope and Lord Clyde, a distinction exists between such ancillary local movement and transporting substantial maintenance equipment between sites before the work begins. The latter activity may involve long journeys and is indistinguishable from carriage performed by a professional road haulier. Exempting the maintenance contractor, while requiring a haulier performing the same carriage to use a tachograph, would conflict with the harmonisation of competition.

5. Per Lord Clyde, the words “in connection with” permit more latitude than “used for”, but a remote connection is insufficient. The transport must at least be ancillary to highway maintenance. Application of that standard depends upon the particular facts, including the journey’s distance, timing, purpose and relationship to work at the site.

6. Per Lord Hope and Lord Clyde, the appellant bore the burden of bringing itself within the exception. The findings did not identify where or when the planer would be used, whether work was imminent or under way, or any circumstance distinguishing the journey from ordinary carriage by road. The statement that the planer was being transported to a site for operation did not establish the necessary close connection. The Divisional Court’s direction to convict therefore stood.

1. House of Lords: Dismissed the company’s appeal unanimously and upheld the Divisional Court’s conclusion that Article 4(6) did not apply.

2. Divisional Court: Allowed the prosecutor’s case stated, held that the justices had erred and returned the matter to the Magistrates’ Court with a direction to convict.

3. Magistrates’ Court: Dismissed both informations on the ground that the lorry’s use fell within Article 4(6) of E.C. Regulation 3820/85.