Jim Dudtworth, editor of Road Transport Law and head of
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Transport Law Services, Woking, Surrey, helps solve your legal problems in this regular column. Write to Commercial Motor; Room H203, Quadrant House, The Quadrant, Sutton, Surrey SM2 5A5 giving your name and telephone number. Duckworth's answers are an interpretation of the law and should not be seen as definitive.
NO TOTALLING HOURS • I was driving my 38tonne artic when directed into a roadside check. A Ministry man checked my tacho records and said my daily rest period the night before had been only eight and a half hours.
He said that, because the minimum nine hours' rest had not been taken, both days' work formed
one working day. He said the total of driving time on both days added up to more than 10 hours, so I would be prosecuted for driving for more than 10 hours as well as not having the legal daily rest period.
His opinion about adding two days' work together didn't sound right to me. How does the law stand on this point?
• The examiner is wrong in believing that failure to take a daily rest period of the legal minimum required causes the driving periods at either side of the rest period to be aggregated.
That situation—as far as goods vehicles are concerned—was the position under the British hours' law. The restriction on driving hours, in Section 96 of the Transport Act, was related to a "working day". The definition of a working day in Section 103(1) states that it continues until a rest period of a prescribed length is taken.
However, on 29 September 1986—when the present EC Regulation came into force— the driving hours' restrictions of Section 96 were removed from a driver to whom the EC Regulation applied. The change was made by the Drivers' Hours (Goods Vehicles) (Modifications) Order 1986.
The EC Regulation—which applies to the driving in question—does not contain the term "working day", so the definition in Section 103(1) has no relevance to the interpretation of the EC Regulaton.
Also, the above Order changed the definition of a working day for goods vehicle drivers, so that even where driving periods have to be aggregated under that Order (for drivers exempt from the EC law), it is a maximum of 24 hours and has nothing to do with daily rest periods.
If a driver to whom the EC Regulation applies takes insufficient daily rest, he should be prosecuted for that offence only.
AIRPORT ROADS • We operate goods vehicles of up to 17 tonnes GVW at a major airport. The police are insisting that the drivers hold a Category C driving licence for vehicles weighing more than 7.5 tonnes and Cl for those under that weight but more than 3.5 tonnes, even when they do not drive the vehicles outside the airport. This is a problem for us.
We have always considered that roads within the airport boundaries, particularly on the air side, are on private land, and the vehicles are not subject to the general law which applies on public roads outside.
What is your opinion P • Section 87 of the Road Traffic Act 1988 states that it is an offence for a person to drive a motor vehicle of any class on a road unless he has a licence authorising him to drive a motor vehicle of that class.
For this purpose, a road is defined in Section 192 of the Act as any highway and any other road to which the public has access", and includes bridges over which the road passes.
The point at issue is whether the roads at your airport— whether air side or not—are roads to which the public has access. If they are, then Section 87 and all the driving licence law applies to them.
A few years ago a case involving roads at Heathrow Airport came before the High Court, and it was ruled that roads at that airport were open to the public. The case—DPP vs Cargo Handling 119921 RTR 318—involved a freight forwarder's truck in which the tachograph had not been calibrated for several years.
One of the roads involved was said to be in a customscontrolled area where there was no physical restriction on pedestrians using the road, and in fact some people used it to visit retail premises in that road. The other was the Southern Perimeter Road, which has no physical restrictions whatsoever on access and is used by any vehicles.
In reaching its decision the court considered the case of DPP vs Vivier [1991] ATM 205, where the High Court had decided that roads within a caravan park were roads to which the public had access, even though people were allowed in only if they lived there or had a visitor's pass. The court said: "Up to the boundary of this caravan site, those seeking entry are unarguably members of the general public, pure and simple. In our judgment it is quite unreal to suggest that at the gate some transformation occurs whereby they alter their legal character, shed their identity as members of the general public and take on instead a different status as caravanners and campers."
Another High Court case involving roads in enclosed areas was DPP vs Coulman 11993] AIR 230. It involved a truck being driven—by a driver alleged to be over the drink limit—from a ferry at Eastern Docks, Dover, and along the Inward Freight Immigration Lane. No one could access this lane from the landward side at Dover unless he had a passport and a ferry ticket, or was an employee or had a pass. No one could gain access from the seaward side unless he had gone through similar controls at a foreign port. The High Court ruled that those entering the lane from the ferry were ordinary members of the public and, consequently, the lane was a road to which the public had access.
The roads at your airport, whether within the secure "air side" or within the airport boundary, are used not only by employees of the airport but by outside contractors— such as catering vehicles and waste disposal vehicles—and also by passengers going to and from aircraft. You would, therefore, have great difficulty in persuading a court that they were not roads to which the public had access.
Consequently. I consider your drivers need a driving licence of a category appropriate to the class of vehicle that they are driving.