Vehicle Inspectorate v Bruce Cook Road Planing Ltd & Anor

The House of Lords considered whether a tipper lorry transporting a road planing machine was exempt from the tachograph requirements by Article 4(6) of Council Regulation (E.E.C.) No. 3820/85 and thus outside the scope of Article 3(1) of Regulation 3821/85, as applied by section 97(1)(a)(iii) of the Transport Act 1968. The court held that Article 4(6) must be given a limited construction: the vehicle's use must be closely connected and ancillary to highway maintenance, performed as a general service in the public interest, and should not undermine the Regulation's objectives of harmonising competition, improving working conditions and road safety.

On the facts found by the justices there was insufficient evidence of a close enough connection: transporting the planer from one place to a site for later use, potentially over a long distance and before works commenced, was ordinary carriage and did not fall within the exception. The appeal was therefore dismissed.

Background and facts:

• The appellant company and its driver were prosecuted under section 97(1)(a)(iii) of the Transport Act 1968 for failing to keep a tachograph record as required by Article 15(2) of Council Regulation 3821/85.
• On 30 July 1996 a tipper lorry with a trailer carrying a road planing machine was stopped. The justices found the lorry was transporting the machine to a site so it could be operated and that the machine required transport on a low loader to be used.
• The magistrates dismissed the informations on the basis that the use fell within Article 4(6) of Regulation 3820/85. On a case stated the Divisional Court directed a conviction. The company appealed to the House of Lords.

Nature of the claim: The appellant sought to resist conviction by invoking the exception in Article 4(6) (vehicles "used in connection with" highway maintenance) so as to be exempt from the tachograph obligation.

Issues framed by the court:

• Whether the vehicle was "used in connection with" highway maintenance within Article 4(6) of Regulation 3820/85.
• Whether the derogation should be construed narrowly so as not to undermine the Regulation's objectives (harmonisation of competition, working conditions and road safety).
• Whether the factual findings were sufficient to establish the exception.

Court’s reasoning and outcome:

• The court applied ECJ authorities (including British Gas, Goupil and Mrozek/Jager) and the Regulation's objectives to conclude Article 4(6) is a derogation to be confined to what is necessary. Vehicles covered are those used for general services in the public interest and whose carriage is ancillary and short in scope to the operational works.
• Transporting heavy plant to a site prior to works, especially over potentially long distances and without evidence works were imminent or that the vehicle was under public-authority control, is ordinary carriage and risks distorting competition with professional hauliers; it is not within the exception absent close connection and ancillary character.
• The justices’ factual findings were inadequate to establish the necessary close connection; on the material before the court the appellant failed to satisfy the exception. The appeal was dismissed.

Appeal dismissed. The House of Lords held that Article 4(6) of Regulation 3820/85 must be narrowly construed so that the derogation applies only where carriage is closely connected and ancillary to highway maintenance (a general public-interest service) and where application of the derogation will not undermine the Regulation's objectives. Transporting the planing machine from one place to a site for later use, potentially over a long distance, was ordinary carriage and did not qualify; moreover the factual findings were inadequate to establish the exception.

Magistrates' Court: informations dismissed (justices concluded Article 4(6) applied). On a case stated, the Divisional Court took the opposite view and returned the case to the Magistrates' Court with a direction to convict. The appellant appealed to the House of Lords which dismissed the appeal. (No additional neutral citation for the Divisional Court decision is given in the judgment.)