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1st January 1998, Page 40
1st January 1998
Page 40
Page 40, 1st January 1998 — any questions
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Which of the following most accurately describes the problem?

Jim Duckworth, editor of Road Transport law and head of Transport law Services, Woking, Surrey, helps solve your legal problems in this regular column. Write to Commercial Motor Any Questions, Room H203 Quadrant House, The Quadrant, Sutton, Surrey SM2 SAS or phone CM's legal hotline (0181 652 3689) giving your name and number. Duckworth's answers are an interpretation of the law and should not be seen as definitive.

Rubbish and tachograph rules

We are in the waste disposal business and have been working on a new contract taking rubbish to a landfill tip. We were told this work was exempt from the tachograph law so drivers did not keep records. Police told a driver he would be prosecuted for not using the tachograph and that because the vehicle was not owned by a local authority it was not exempt. Has the law changed recently?

A The law itself has not changed since 1986 hut the way it is interpreted has changed. The EC hours and tachograph law contained in EC Regulation 3820/85 came into operation in September 1986. Article 4(6) exempts vehicles used in connection with various activities which had a history of being carried out by public authorities. One of these is "refuse collection and disposal".

The previous exemption for refuse transport, in EC Regulation 543/69, was confined to refuse collection and only by "public authorities for public services".

A change made by the present regulation was to add refuse disposal to refuse collection and to delete the refer. ence to "public authorities for public services". The latter move was in line with the general trend to remove obstacles to equal competition between the public and private sector.

Article 4(6) exempts vehicles "used in connection with" other kinds of activities. A case involving the interpretation of these words was before the High Court in DPP vs Ryan. It was heard in 1991 and involved a vehicle used for drilling water wells. Magistrates accepted the vehicle was exempt under Article 4(6) from having a tachograph and dismissed the charge. The prosecution appealed but the High Court, in dismissing the appeal, said the words "used in connection with" had a wide meaning and the exemption was available to private contractors.

After that decision the view in Britain was that private contractors' vehicles used in connection with refuse collection and disposal were exempt from the EC hours' and tachograph law.

However, problems about the refuse exemption arose on the continent and courts in France and Germany referred cases to the EC Court. The cases were (a) Mrozek and Jager and (b) Goupil, and both involved private contractors transporting refuse.

In March 1996 the EC Court decided the exemptions in Article 4(6) should be strictly construed and the words "vehicles used in connection with...refuse collection and disposal" covered vehicles "used for the collection of waste of all kinds which is not subject to more specific rules and for the transportation of such waste over short distances, within the context of a general service in the public interest provided directly by the public authorities or by private undertakings under their control".

That decision is binding on courts throughout the EC.

A few months after that decision another waste transport case came before the High Court in London. In the case of Swain vs McCaul the defendant had been charged with not keeping tachograph records in a skip lorry carrying waste. Magistrates decided the vehicle was used in connection with refuse collection and disposal and dismissed the charge. The prosecution appealed and the High Court took the view that the exemptions in Article 4(6) were restricted to a general service performed in the public interest and, as McCaul's vehicle was used for a commercial service, it allowed the appeal.

It can be seen that while the law has remained the same since 1986 the way the courts apply it has changed. So, unless your operation comes within the test given by the EC Court, the exemption will not be available to you.

Animal tacho?

As an owner-driver I operate a livestock vehicle and was stopped by police while carrying a load of cows to an abattoir some 15 miles from my base. I believed there was an exemption from the tachograph law for taking livestock to the nearest abattoir.

Can you confirm that the exemption is there?

A Exemption from the EC

drivers' hours and tachograph law is given in the Community Drivers Hours and Recording Equipment (Exemptions and Supplementary Provisions) Regulations 1986 to a vehicle used for carrying live animals between a farm and a local market and from a market to a local abattoir.

You do not say where you had collected the animals. If you had not collected them from a market the exemption would not apply.

There is no distance figure specified in the exemption but in a case some years ago the European Court ruled that a "local market' meant "the market which, having regard to geographical circumstances, is the nearest to a particular farm and at which it is possible to buy or sell, as the case may be, according to the needs of the normal, average-sized farms which may be considered typical of the area in question." A court would be likely to consider that decision when deciding whether an abattoir was local.

The same regulations give exemption for a vehicle used by an agricultural undertaking carrying goods anywhere within a 50km radius of the vehicle's normal base. But, unless you were a farmer as well as a haulier, this exemption would not be available to you.

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