Vehicle Inspectorate v Bruce Cook Road Planing Ltd & Anor

The exception in Article 4(6) of Council Regulation No. 3820/85 is limited. It applies to vehicles used wholly and exclusively for a general public service or to vehicles whose journeys are ancillary to on‑site works over short distances and short periods. Transporting heavy plant to a site before works commence, especially over long distances, is ordinary carriage and will not ordinarily fall within the exception. National courts must construe the derogation narrowly so as not to undermine road safety and harmonisation objectives.

The appellant company and its driver were prosecuted for failing to keep a tachograph record while a tipper lorry and trailer transported a road planing machine on a public road. The justices acquitted on the basis that Article 4(6) of Council Regulation 3820/85 exempted vehicles used "in connection with" highway maintenance. The Divisional Court directed convictions. The House of Lords considered whether carriage of plant to a site prior to works falls within Article 4(6). The central question was the proper scope of the Article 4(6) derogation in light of the Regulation's objectives.

1. Disposition: The appeal is dismissed. The House of Lords (Lords Slynn, Steyn, Hope, Clyde and Hutton) agreed the justices' conclusion could not stand on the material before them.
2. Leading reasoning: Per Lord Slynn, the derogation in Article 4(6) must be read in context and in light of the Regulation's aims of harmonising competition, improving working conditions and enhancing road safety. A wide construction that exempts long distance carriage to a site would undermine those objectives and distort competition between specialist hauliers and service providers.
3. Application of ECJ authority: The decisions of the European Court of Justice in [1992] ECR I-4071 (British Gas), Case C-335/94 (Mrozek/Jager) and Case C-39/95 (Goupil) demonstrate that Article 4(6) covers general services provided in the public interest and that the transport must be ancillary, of limited distance and duration. The House applied those principles to require a close connection to on‑site maintenance activity.
4. Factual burden and insufficiency: Per Lord Hope and Lord Clyde, the appellant bore the burden of proving that, at the relevant time, the vehicle was being used in circumstances that brought it within the derogation. The factual findings were too meagre to establish a sufficiently close or ancillary connection. No evidence showed works were about to commence or that the journey was of the short, local type the exception contemplates.
5. Practical guidance: Transport of substantial plant to a site prior to works is ordinarily ordinary carriage. Movements that are ancillary to on‑site operations, or short journeys from a local depot or during the working day, may fall within Article 4(6). The closer and more ancillary the journey to the on‑site works, the more likely the exception will apply.
6. Orders: Appeal dismissed. Convictions were directed by the Divisional Court and the House upheld that direction.

• Divisional Court (Administrative): Allowed prosecution's case and directed magistrates to convict (reported in transcript and referred to in the House of Lords' reasons).
• Magistrates' Court: Acquitted the appellants on the basis that Article 4(6) applied; certiorari / case stated led to Divisional Court review.
• House of Lords: Dismissed the appeal and upheld the Divisional Court's view that the exception had not been established on the facts.