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Exempt or not exempt?

26th July 2012, Page 19
26th July 2012
Page 19
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Page 19, 26th July 2012 — Exempt or not exempt?
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Which of the following most accurately describes the problem?

Many operators rely on EU drivers’ hours exemptions, but a recent case highlighted the law is not always clear

Words: Patric Cunnane Anyone downwind of a truck carrying out-of-date meat from a supermarket may need a peg on their nose, especially if it’s late in the day when the vehicle has performed several collections. In order that such waste is disposed of speedily, the driver and operator are exempt from the EU drivers’ hours rules under a national derogation.

Instead, the driver must record his hours in a log book for roadside inspection. The derogation allows the driver to continue to his inal destination and ensure that the load cannot re-enter the human food chain. However, a recent failed case in Lincoln has led Vosa to pledge that it will work with the industry and the Department for Transport (DfT) to provide “a clear explanation of how and why this exemption can be used” .

The agency alleged tachograph offences against two operators transporting animal waste but the case collapsed after the judge accused Vosa of “abuse of process”.

Last month, Lincoln magistrates’ court heard that the drivers used log books rather than tachographs as the operators believed they were entitled to rely on the derogation. A Prosper de Mulder vehicle was stopped on 17 January 2011 on the A46 Lincoln by-pass and a GH Klein vehicle on 31 January 2011 near Holdingham. The drivers were transporting supermarket waste for safe disposal when they were stopped. The exemption applies to “vehicles being used to carry animal waste or carcasses that are not intended for human consumption” .

Impractical exemptions

The case hinged on the argument that animal waste now includes pre-packed supermarket products, including meat and meat sandwiches, which are past their sell-by date. “These form part of the waste collected by our clients – it’s impossible and impractical to separate them,” says Anton Balkitis, transport lawyer at Rothera Dowson, which represented the operators. In awarding costs to the defendants, Judge DJ Stobart pointed to the inconsistency of Vosa’s case. “Maps show stoppages by Vosa of the defendants’ vehicles over a long period and no hint has been given that using a log book would place them in peril of prosecution,” he said. “I ind there is an abuse of process and I order the proceedings to be stayed against all defendants.” Prosper de Mulder director Keith Jennison says his irm has used logbooks for many years while collecting animal waste. “The case raised the need for greater clarity on the derogation and whether it incorporates packaged meat products,” he says. “We want to work with Vosa to agree a national, industry-wide deinition of this derogation.” Roy Graves, adviser to GH Klein, estimates that up to 700 UK lorries are engaged in this work. As well as supermarket work, collections include bones from abattoirs and produce from meat and ish markets. “We’ve been doing the same thing for 50 years and we’ve had a driver issued with a ixed penalty for not using a logbook,” he says. “We’ve had 17 vehicles stopped in the past two years and had no problems except in Lincoln.” The exemption has a practical aspect. “If a meat fridge breaks down in a supermarket, we are lexible enough to clear it,” he says.

The Lincoln case has been thrown out but the inconsistency in the way the law was applied shows that operators must take great care over derogations. “If you rely on an exemption, your use of the vehicle must be pure,” says Tim Ridyard, a partner in Woodines Solicitors. He cites recovery vehicles, which are allowed to claim exemption from EU drivers’ hours and O-licensing regulations while removing a broken down or damaged vehicle within 100km radius of base. “However, recovery operators must be careful not to stray into other work, such as transporting engines,” he says.

Check out the DfT website

There are 27 EU drivers’ hours exemptions. Nine apply across the EU, while the others are national derogations. Nick Deal, secretary of the Road Haulage Association’s waste management group, points to the rules on drivers’ hours and tachographs available on the DfT website.

The section, exemptions and derogations, lists all 27 exemptions and adds clariication where it is available. “The exemption for animal waste and carcasses doesn’t say a lot – there are no notes of clariication next to it,” he says. By contrast, the exemption for vehicles involved in sewage, road and power maintenance, and refuse collection has a long note citing “signiicant court rulings from the European Court of Justice and British courts dealing with this derogation. Common themes have included a direct and close involvement in the exempt activity, the principle of a general service in the public interest and the limited and secondary nature of the transport activity.”

It is to be hoped that Vosa’s pledge to clarify the animal waste derogation will not require further confusing court cases before everyone is clear about where the law stands. ■

Rules of the road

There are 27 EU and national derogations from EU drivers’ hours rules. Among the most relevant are: • specialised breakdown vehicles used within 100km radius of base; • agricultural tractors and forestry tractors used within 100km radius of base; • vehicles used to carry animal waste or carcasses not intended for human consumption; • vehicles under 7.5 tonnes, used to carry materials, equipment or machinery for the driver’s work within 50km of base; • vehicles for driving instruction and examination; • vehicles used to maintain services such as gas, electricity, water and sewage or to collect refuse; • vehicles used in milk collection from farms or the return to farms of milk containers or milk products intended for animal feed; and • vehicles under 7.5 tonnes, propelled by gas or electricity and used within 50km of base.

OTHER EXEMPTIONS

There are 29 exemptions from O-licence usage. Many derogations mirror the drivers’ hours exemptions including recovery and agricultural vehicles, armed forces, fire service and emergency vehicles. Other categories include: • vehicles fitted with a machine that is a permanent fixture used in, for example, the threshing of grain or clearing roads of mud and other matter; • road construction trailers and road rollers; • non-resident cabotage vehicles; • snow ploughs; and • tower wagons used for maintaining overhead structures.


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