ENFORCEMENT COMMENTARY: LIFTING AXLE CONTROVERSY
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MI The controversy over the taxation of vehicles with retractable axles appears to have ended with the withdrawal, just before Christmas, by the Crown Prosecution Service, of a prosecution brought against Stoke-on-Trent haulier Michael Bailey Transport Ltd before Rochdale magistrates.
The company had been charged with an offence under Section 18 of the Vehicles (Excise) Act 1971, in that it was said to have been using a vehicle in an altered condition, or for a manner or purpose, for which a higher rate of vehicle excise duty was applicable.
The history of the matter goes back to early last year when the stopping of an articulated outfit, operated by the company, while partly laden and with the retractable axle of the semi-trailer in the lifted up position, led to a similar charge being brought against both company and driver before Eccles magistrates.
The tractive unit had been taxed at the concessionary rate appropriate for a 3 x 3 configuration with a plated weight of between 36 and 38 tonnes, to be used only with semi-trailers with not less than three axles, namely £1,240, and not at the rate of £2,730 payable for a 3 x 2 configuration with a plated train weight of 36 tonnes. The actual plated weight of the tractive unit was 32 tonnes.
The driver of the vehicle told police officers that he had been instructed by the company to raise the retractable axle of the semi-trailer when carrying a part load in order to reduce tyre wear and fuel costs. The prosecution took the view that the use of the vehicle with the axle in the raised position, when duty had been paid at the concessionary rate for tri-axled trailers, was contrary to Section 18 of the Vehicles (Excise) Act in that it was use in an altered condition to which a higher rate of duty applied The Eccles magistrates dealt with the case against the company first. The company's solicitor, Richard Belfield, argued that whether a retractable axle was used in the lowered or raised position did not alter the condition of the vehicle. The retractable axle was part of the original make-up of the semi-trailer and had not been added later. The semi-trailer was capable of being a two-axled trailer or a three-wded trailer, dependent upon the use of the equipment to raise one of the axles.
In reply, it was argued that it was not necessary for any physical alteration to be made to the vehicle. The offence consisted not of altering the condition of the vehicle, but of using it in an altered condition. The word "altered" had a literal meaning. The number of axles in contact with the road surface was a matter of considerable significance, and any alteration in that number, no matter how it had been brought about, was fundamental and constituted use in an altered condition for which a higher rate of duty was payable.
It was agreed by both prosecution and defence that if the trailer was used as a two-axled trailer while unladen it did not attract a higher rate of taxation.
The case was adjourned for the clerk to seek advice from the Clerk to the Magistrates, a barrister. When the hearing was resumed some weeks later, the clerk to the magistrates advised the Bench that on the evidence they were entitled to find that the vehicle had been used in an altered condition.
The clerk disagreed with the defence arguments, but said that he thought that the most important element was that the altered manner must be sufficient to bring the vehicle within a higher taxation bracket. Consequently, before the magistrates could convict they must have evidence that the vehicle was laden at the relevant time.
On the notes he had, the police officer did not appear to have to have given any clear evidence on the last occasion that the vehicle was laden. The only evidence, and the only evidence of the "use" of the vehicle by the company, was the statement of the driver. It had not been established that he was authorised to speak on behalf of his employers. Consequently, his statement was hearsay as far as the company was concerned and was therefore inadmissible.
On those technical grounds, the magistrates ruled that the company had no case to answer.
The clerk then indicated that his view was that an offence could be comitted by using the retractable axle mechanism in such a manner, He said that although 'axle" was defined in Paragraph 15(1) of Schedule 4 of the Vehicles (Exise) Act so as to include "a retractable axle", it had to be read in the context of the opening words of the paragraph, which said "unless the context otherwise requires". In his opinion, it would make nonsense of the concessionary rates to accept that a tri-axled trailer continued to be such when it was used with all or some of the axles raised.
Belfield said that the company's managing director would have given evidence that his inquiries had resulted in advice that the company was within the law in using the semi-trailer with the retractable axle in the retracted position in such circumstances.
He would have referred the court to Section 18(5) of the Act, said Beheld, and argued that since the laden weight of the vehicle on the occasion in question was not greater than its plated train weight, the vehicle was duly licensed at the appropriate rate of duty and no offence had been committed.
The case against the driver was adjourned for a week. However, the Crown Prosecution Service rightly decided that it would be wrong to proceed solely against the driver in circumstances where the case against his employers had been dismissed, and the charge against the driver was dropped.
While all this was going on, another of the company's vehicles was stopped by the police in exactly similar circumstances Charges were laid and were due to be heard by Rochdale magistrates in December. It was anticipated that on this occasion the Crown Prosecution Service would have got its act together and produced the necessary evidence to prove the basic facts to get the case off the ground, leaving the way clear for the legal issue to be argued.
In the Eccles case, both sides had indicated that they were likely to appeal on a point of law, before the prosecution neglected to call the basic evidence to prove that the vehicle had been laden and had been being used by the company. Presumably, both sides would have III From the evidence before the Metropolitan Licensing Authority, it seems to the Transport Tribunal that the only possible reason for his imposing a weight limit of 25 tonnes when hearing the variation application before him was inconvenience in using the highway.
The LA misdirected himself in taking it into account, says the Tribunal, allowing an appeal by Peter Thomas Chesney, trading as C & H Carriers, to the extent that the LA's second condition will read The gross all up weight of the authorised vehicles not to exceed 30.5 tonnes."
Chesney applied to vary his existing standard 0-licence for one vehicle in possession and seven to be acquired by substituting for the existing operating centre in Orpington, Kent, a centre at the Charles Ellerby Transport Yard, CuIvey Close, Ash Road, Hartley, near Dartford. Twenty-five representations against the grant were received from persons who consider they live within the vicinity of the yard and a public inquiry was held.
At the inquiry the LA granted the application but reduced the number of vehicles to be acquired from seven to six and imposed two conditions.
The first one limited the hours of movement irrelevant to the appeal since there was no appeal from it and the second was the 25 tonnes limit.
The appellant appealed against the second condition on the grounds that • The LA wrongly took into account matters which did not prejudicially affect the use of enjoyment of the representors' lands as required by Section 69D (5) of the Transport Act 1958; • After a traffic examiner visited the declared seven vehicle operating centre of C & B Haulage and Plant Hire Ltd at Lancaster Site, Chequers Lane, Dagenham, Essex, he reported that C & B Haulage was not known at the operating centre which was owned and occupied by York Trailers.
In a letter to the company it was told that the Metropolitan LA was proposing to revoke the licence in consequence, and offering a public inquiry.
When there was no response to the Traffic Area's call-up letter, a phone call was made to J Newton and Company, the transport consultants employed by C & B Haulage. The Traffic Area was told a letter had been written on the matter the previous day, but J Newton had a similar intention in relation to the Rochdale case and the decision not to go ahead with that prosecution would seem to indicate that the Crown Prosecution Service believes that the defence are right in their arguments.
As a consequence, it would appear that hauliers, who have taxed their tractive units at the concessionary rates available when used with tri-axle trailers, need not fear that they may be committing an excise licence offence every time a retractable axle is used in the lifted up position on a partly laden semi-trailer. by Insider • He wrongly took into account in contravention of Section 69D (5) matters which were excluded from his consideration by the words "but so far only as relates to that place or operating centre" at the end of that subsection.
Jeremy Fear, for the appellant, submitted that the LA acted in breach of the principles of natural justice in failing to invite any comment or evidence from the appellant about the relevance of such a condition before imposing it, The Tribunal says the representors complained of noise and fumes from lorries entering the yard and running down the road outside it, and vibration. There was no challenge on those matters. There was a dispute whether 30-ton vehicles could get round a corner without going to the other side of the road; Chesney maintained that happened only with artics.
The LA's decision, says the Tribunal, was very short. He offered a fuller written judgment if Chesney wished for one. That offer was not taken up.
In the course of that decision the LA said "There are sufficient (representations) showing that there is or would be damage in regard to noise and the convenience of the use of Ash Road by members of the public living in the vincinity." (Tribunal's italics).
In the Tribunals judgment Fear was right in his submission that even if the facts found in the passage in italics could have an adverse effect on environmental conditions, inconvenience in using the public highway itself (as opposed to noise, fumes and vibration which enter a representor's property from authorised vehicles on a highway) is incapable of affecting the use or enjoyment of the representors' land.
would not be representing the company at an inquir17.
The letter duly arrived, saying C & B Haulage had acquired the declared operating centre but it was necessary to clear the site and erect offices which required planning permission.
The company did not appear at the inquiry and the LA determined the matter on the facts before him. The essential fact is that C & B Haulage are not using and have not used their nominated operating centre and for a considerable time must have been using improperly some other place," writes the LA, Air Vice-Marshal R 0 Ashford, in a written decision, revoking the licence with immediate effect, • A total of 3,089 heavy goods vehicles drivers licence 6pplications were refused or withdrawn in the year ended March 1987, reveal the Annual Reports of the Licensing Authorities (f2.05) (4 February, Commercial Motor) to the Secretary of State for Transport, issued by the Traffic Area Co-ordination Committee of the Department of Transport.
The breakdown in an appendix shows the numbers of licences revoked (2,308) or suspended (758) during the year.
The numbers from the various Traffic Areas were: North Eastern, 637 revoked, 152 suspended; and for the other areas (suspended licence numbers in parenthesis): North Western: 298(112) West Midland: 326(11) Eastern: 382 (153) South Wales: 89(5) Western: 125 (38) South Eastern: 144(40) Metropolitan: 94(119) Scottish: 213 (128) Licensing Authorities granted 649 of these licences on reconsideration of their initial decisions and similarly refused 258.
On appeal to a magistrates' or sheriff court 12 were granted and 14 refused.
The total number of licence applications (including renewals) received was 383,796: the largest number was the South Eastern Area's 84,197 and the smallest 14,772 from South Wales, Of the licences issued: a total 28,823 were new full licences; 261,918 renewed full licences; 69,401 provisional licences.
Another appendix shows the number of heavy goods vehicles inspected and prohibition notices (GV9s) issued during the year. These figures include inspections at smokechecks but exclude those in connection with mechanical defect investigations. The main figures are: Number of primary inspections: 107,664 Number of secondary clearance inspections: 20,472 At spot-checks 57,448 vehicles were inspected and at operators' premises during prearranged visits 50,216. Spot-checks attracted 3,347 immediate prohibitions and 4,258 delayed prohibition notices. Pre-arranged visits involved 913 immediate and 1,073 delayed prohibitions.
In the numbers of restricted, standard and standard international licences granted, the Eastern Area led with 9,060, 9,324 and 2,870 respectively. The total number of licences in issue from all Areas amounts to 130,335. A note adds that there were 434,600 heavy goods vehicles greater than 3.5-tonnage gross vehicle weight licensed at 31 January 1987.
The total number of notifiable 0-licence applications was 38,266, and the number of applications to which objections and representations were received was 2,788.
The numbers of objections and representations received came to the following under these categories: Police 8 Local planning authorities 1,195 Road transport associations 8 Transport trade unions 1 The Reports, published last month, show that the number of new applications for goods vehicle operator licences, for the year 1986/7, increased for the third successive year. The number of licence renewals dropped sharply.
The 130,335 operator licences in issue represent an increase of 939 on the previous period Since June 1984, when environmental provisions came into effect, the number of objections and representations on the use of goods vehicle operating centres has doubled.
The number of goods vehicles checked by traffic examiners, in ports and at inland sites, increased by 11% to nearly 219,000. 21% of the vehicles check-weighed were found to be overloaded. Enforcement is being stepped up against overloaded lorries, both foreign and British. More weighbridge sites are being brought into operation.
The LAs reported instances where tachograph charts showed that drivers of heavy goods vehicles had exceeded the speed limit. They emphasised that such instances will be taken into account when considering the issue of driver and operator licences.
There were 5,270 successful prosecutions against UK and foreign drivers/operators for offences of all kinds (including non-payment of vehicle excise duty) with resulting fines totalling over £1,5 million.
Department of Transport vehicle examiners undertook 128,000 primary and secondary examinations during the year, just over 9% more than in the previous year, but the number of vehicles attracting prohibitions fell significantly.
During the year some LAs reported a sharp increase in vocational driver licence cases brought to public inquiry following drink/ driving offences. Greater emphasis is being placed on the seriousness of such offences in considering whether or not a person is fit to hold a licence.
Growing interest in the environmental impact of goods vehicle operators is reflected in the annual report in the LA for the North Western Traffic Area Of the 4,106 applications for new licences or to renew existing ones more than 200 gave rise to environmental issues raised by people living nearby and local authorities. They often related to noise including the size of vehicle and times of operation such as early mornings or Sundays. As a result 48 applications were granted with environmental conditions attached while another 39 were amended by the applicant and 17 were refused.
Of 7,322 vehicles checked at a weighbridge 566 were prosecuted or ordered to reduce their load after being found to be overloaded. This is a reduction from 626 on the previous year. Some 904 prosecutions were taken out against operators based in and outside the region, more than 400 being over-loading. Total fines for all offences were £155,361.
Copies of the Reports may be obtained for £3.05 from the Publication Sales Unit, Department of the Environment and Transport, Victoria Road, Ruislip, Middlesex HA4 ONZ. Cheques/postal orders should be made payable to the Department of Transport and crossed