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House of Lords
Session 1998-99
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Judgments

Judgments - Vehicle Inspectorate v. Bruce Cook Road Planing Ltd. and Another

HOUSE OF LORDS

  Lord Slynn of Hadley   Lord Steyn   Lord Hope of Craighead
  Lord Clyde   Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

VEHICLE INSPECTORATE
(RESPONDENTS)

v.

BRUCE COOK ROAD PLANING LTD. AND ANOTHER
(APPELLANTS)

ON 21 OCTOBER 1999

LORD SLYNN OF HADLEY

My Lords,  Section 97(1)(a)(iii) of the Transport Act 1968 provides that

     "no person shall use, or cause or permit to be used, a vehicle to which this section applies unless there is in the vehicle recording equipment which is being used as provided by [Articles 13-15 of that regulation]" (Council Regulation (E.E.C.) No. 3821/85 of 20 December 1985 on recording equipment in road transport).

That regulation provides in Article 3 that

     "Recording equipment shall be installed and used in vehicles registered in a Member State which are used for the carriage of passengers or goods by road, except the vehicles referred to in Articles 4 and 14(1) of Regulation (E.E.C.) No. 3820/85."

        Regulation 3820/85 defines "carriage by road" as meaning "any journey made on roads open to the public of a vehicle, whether laden or not, used for the carriage of passengers or goods" and "vehicles" includes motor vehicles and trailers. By Article 4 the Regulation is not to apply to carriage by vehicles used for a large number of different and unrelated purposes. Group 6 comprises:

     "Vehicles used in connection with the sewerage, flood protection, water, gas and electricity services, highway maintenance and control, refuse collection and disposal, telegraph and telephone services, carriage of postal articles, radio and television broadcasting and the detection of radio or television transmitters or receivers."

    On 30 July 1996 a tipper lorry with a trailer carrying a road planing machine, belonging to Bruce Cook Road Planing Ltd. and driven by their employee Anthony Richard Cheetham, was stopped on the A1 road at Colsterworth in the County of Lincoln at 21.50 by a road traffic examiner. The driver had a current log book of his hours but was not using the tachograph to record his driving and duty hours. The driver said that he had been told not to do so by his employer and Mr. Bruce Cook, a director of the company, said that the company had been in operation since 1982, that "they were only concerned with highway maintenance and repairs and have always considered that we come under Article 4 E.E.C. 3820/85."

    Both the company and the driver were prosecuted for using the vehicle without keeping a tachograph record contrary to Article 15(2) of Regulation E.E.C. 3821/85.

    The justices found, in addition to the facts already referred to, that:

     "(e) The tipper lorry and trailer were being used to transport the road planing machine to a site so that it could be operated;

     (f) The road planing machine was only capable of being used to plane roads when being used with another vehicle. It could not be driven independently and had to be transported from site to site on a low loader or similar vehicle."

    It is agreed that the tipper lorry at the site was used to carry weighing materials loosened by the road planer.

    The justices dismissed both informations on the basis that the use of the lorry fell within Article 4(6) of Regulation E.E.C. 3820/85. On a case stated, the Divisional Court took the opposite view and returned the case to the Magistrates' Court with a direction to convict. The company now appeals.

    Mr. David Phillips Q.C. persuasively argued that the justices were entitled and right to dismiss the informations. What happened here was within the normal ordinary meaning of the words "in connection with" highway maintenance and control. The planer was only used and was going to be used for highway maintenance; it had to be transported to the site and on this occasion was on its way to a site so that it could be operated there; the lorry was used only for the purpose of transporting the planer and for removing materials lifted by the planer; without the lorry (and the planer it carried) being at the site no relevant highway maintenance could take place; the lorry was not being used "in connection with" anything but highway maintenance. The words "in connection with" highway maintenance cannot have been intended to mean only use "in" or "in the course of" acts of highway maintenance. If, as must be accepted, the lorry and the planer had to be driven to the site to carry out the work (and for no other purpose) there is no logic or reason to distinguish between a shorter and a longer journey along the highway to get to the site.

    I see much force in these submissions and it is not surprising that on similar arguments the justices came to the conclusion they did. I am, however, satisfied that they cannot be accepted and that the Divisional Court was right.

    Accepting that "in connection with" in the abstract can have a wide or narrow meaning it is necessary to regard the object and purpose of the Regulations and the context in which the words appear.

    In the first place it is to be noted that in Licensing Authority South Eastern Traffic Area v. British Gas plc. [1992] E.C.R. I-4071, 4092, (para. 13) the European Court of Justice said that the derogation in Article 4(6) was based on the nature of the services in connection with which the vehicles are used.

     "In that respect it is apparent from the list in Article 4(6) that the services envisaged by that provision are all general services performed in the public interest."

    That is so whether the services are provided by or on behalf of the public authority but the fact that they are performed in the public interest was regarded as critical in Swain v. McCaul [1997] R.T.R. 102 where the providing of skips for rubbish was a purely commercial enterprise not carried out for a public authority and therefore not covered by "refuse collection and disposal" within the meaning of Article 4(6).

    There is no finding here that the work was for a public authority but I am prepared to accept that the proper inference in the nature of things is that it was for a public highway and therefore for a public authority.

    The second difficulty here is that there are no detailed findings as to what the lorry and planer were going to do and when, where they were going, how far that was from where the lorry was stopped. The only evidence of the traffic examiner was that the driver said that the lorry was going from Hemel Hempstead in Hertfordshire to Bardley in Lincolnshire, and as this does not seem to have been in issue, there is no finding or agreed statement of fact to that effect. We must therefore proceed on the basis that the lorry was going from "one place" to "a site" where operations were to begin. It is not suggested that it was going direct from the company's premises in Richmond, North Yorkshire, to a site nor that it was going from a nearby depot near to the site. The "place" may have been a long way from and have had no connection with the "site."

    That makes it necessary to consider what is capable of being "in connection with highway maintenance." In that regard it is necessary to bear in mind that in the first recital to Regulation 3820/85 it is said that in the field of road transport earlier Community social legislation "aims at the harmonisation of conditions of competition between methods of inland transport, especially with regard to the road sector and the improvement of working conditions and road safety." (See Reg. v. Thomas Scott & Sons Bakers Ltd. [1984] E.C.R. 2863)

    It is contended by the prosecution that it gives an unfair competitive advantage to the owner of the planer who has his own tipper lorry to transport the planer as against the road haulier who transports under contract with the owner of a planer if the former does not, but the latter does, have to use a tachograph. See Stadtereiningung K. Nehlsen KG v. Freie Hansestade Bremen [1979] E.C.R. 3639. That may be so but it seems to me that there are even more important considerations. A significant objective of this legislation is to prevent drivers from driving for too long periods both in their interest and in the interests of road safety. Long journeys by road, even conveying this equipment, could be detrimental to this objective if no tachograph was required to be kept, even allowing for limits imposed by domestic legislation. Moreover, to accept that a lorry and a planer when taken from any "place" to a "site" is "in connection with highway maintenance" whatever the distance, so long as the purpose on arrival is highway maintenance, would mean that a similar interpretation would apply to vehicles sent to carry out any of the other activities referred to in Article 4(6).

    It is also to be noted that Regulation No. 3820/85 recites that "certain vehicles registered in Member States may without giving rise to difficulty be excluded from the scope of this Regulation." It seems to me that this cannot apply in a situation where all three objectives of the legislation are being put at risk.

    This wider interpretation thus seems to be in conflict with the principal purpose of the legislation. To adopt a more limited interpretation does not mean that the vehicle can never be used "in connection with" highway maintenance unless it is actually "planing," laying materials or carrying them away. Some uses may be shown to be so clearly connected with the activity of maintenance or repair as to fall within the exception. The lorry returning empty from the disposing of material, whether to the operator's site or to a place used for parking the equipment in the course of the operation, can plainly be seen to be capable of falling within the exception.

    That there should be a narrower interpretation, is supported by earlier authorities. Thus in Licensing Authority South Eastern Traffic Area v. British Gas Plc. [1992] E.C.R. I-4071, 4095:

     "The derogation from the requirement to install and use a tachograph . . . applies solely to vehicles used, at the relevant time, for carriage wholly and exclusively in connection with the production, transport or distribution of gas, or the maintenance of the necessary installations for that purpose. However, that derogation does not apply to vehicles wholly or partly used at the relevant time in connection with the carriage of domestic gas appliances."

Also in Amtsgericht Reckinghausen (Germany) v. Hans Mrozek and Jager [1996] E.C.R. I-1573, it was said:

     "(12) In the light of those objectives, and primarily that relating to the improvement of road safety, the term 'refuse collection' should be interpreted as applying only to the collection of refuse from a place where it has been deposited. Vehicles used for that activity travel over a limited distance and for a short period, and the transport remains ancillary to the collection. Refuse transport which does not have those features cannot fall within the exemption. It is for the national court to determine in each case before it whether that is so.

     "(14) Within the limits thus defined the movement of vehicles when empty and when preparing to carry out such transportation also falls within Article 4(6) of the Regulation."

In Ministere Public v. Pierre Goupil [1996] E.C.R. I-1601, the European Court said at para. 16 that Article 4(6) must be interpreted as:

     "covering 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."

    See also Vehicle Inspectorate v. Moss (unreported) 10 March 1998, Divisional Court, per Lord Bingham C.J. at p. 14 of the transcript and the judgment of the High Court of Justiciary delivered by Lord Hope, Lord Justice General, in Reith v. Skinner 1996 S.L.T. 1302.

    It seems to me, on the basis of these authorities and as a matter of the language of the Article seen in its context, that merely to show that the lorry was going from A to B to begin work at B on highway maintenance does not establish a close enough connection; here there was in reality nothing more.

    The appeal must accordingly be dismissed.

LORD STEYN

My Lords,

    I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Hope of Craighead and Lord Clyde. For the reasons they have given I would also dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    The question in this case is whether the appellant, Bruce Cook Road Planing Ltd., and its driver, Anthony Richard Cheetham, were in breach of section 97(1)(a)(iii) of the Transport Act 1968 because a current tachograph record was not being kept by means of recording equipment installed in accordance with Article 15(2) of E.C. Regulation 3821/85 in the vehicle which Cheetham was driving when he was stopped by the police on the A1 road at Colsterworth in Lincolnshire on 30 July 1996.

    The answer to that question depends upon whether the appellant is entitled to the benefit of the exception provided for in Article 4(6) of E.C. Regulation 3820/85. Article 3(1) of E.C. Regulation 3821/85 states that recording equipment shall be installed and used in vehicles registered in a member state which are used for the carriage of passengers or goods by road, except the vehicles referred to in Articles 4 and 14(1) of E.C. Regulation 3820/85. But Article 4(6) of E.C. Regulation 3820/85 states that that regulation shall not apply to:

     "vehicles used in connection with the sewerage, flood protection, water, gas and electricity services, highway maintenance and control, refuse collection and disposal, telegraph and telephone services, carriage of postal articles, radio and television broadcasting and the detection of radio or television transmitters or receivers."

    The appellant claims the benefit of the exception, as it is a company which provides highway maintenance services. Its contention is that the vehicle which Mr. Cheetham was driving was being used in connection with highway maintenance at the time when he was stopped by the police.

    The issue is primarily one of fact, having regard to the terms and purpose of the exception. According to principles which are so well established as to require no citation of authority, it was for the appellant to show that the vehicle was being used at the time for a purpose which brought it within the exception. The facts which were found proved by the justices were simply to this effect. The vehicle in question was a tipper lorry, registration mark F618 RPY. It was a 3 axle tipper with a 3 axle drawbar trailer. It was stopped at 21.50 hours on 30 July 1996 when it was being driven on the A1 road in Lincolnshire. A road planing machine was being carried on the trailer at the time. The tipper lorry and trailer were being used to transport the road planing machine to a site so that it could be operated. The planing machine was not capable of being driven independently. It was only capable of being used to plane roads when used with another vehicle. So it had to be transported from site to site on a low loader or similar vehicle.

    Although there is no finding in these terms, the reference by the justices to the fact that the planing machine had to be transported from site to site implies that it was in the course of being transported from one site to another by means of the trailer when the vehicle was stopped by the police. This inference is supported by the fact that it was late in the evening when the vehicle was stopped, and by information which the driver gave to the police that he was conveying the planing machine on behalf of his employers, whose principal place of business was in North Yorkshire, from Hemel Hempstead in Hertfordshire to Bardney in Lincolnshire. There is no finding, nor is there any information, as to the location of the site to which the planer was being transported. It could have been close by, or it could have been a hundred or more miles away from Colsterworth. Nor is there any finding or information as to the date when it was to be put into operation on that site.

    Mr. Phillips Q.C. for the appellant said that the practice was for the appellant's driver to drive the tipper lorry to the site of the highway maintenance works where the planer was taken off the trailer and put to work. The tipper lorry was then used as one of a fleet of tipper lorries to receive rubble which was removed by the planer from the road surface. He maintained that use of the vehicle to transport the planer to the site where it was to be used was within the exception. The location of the site where it was to be operated was immaterial. It was enough that this was a piece of equipment which was used for highway maintenance. The fact that the vehicle was being used to carry it to a site so that it could be operated there was sufficient to show that the vehicle was being used "in connection with" highway maintenance.

    It is clear that the purpose of the E.C. Regulation 3821/85 is to promote road safety by regulating the length of continuous and daily driving time and requiring rest periods. The derogations from that Regulation in Article 4(6) of E.C. Regulation 3820/85 are to be permitted only to the extent necessary to enable the services mentioned in that Article to be provided. The list of the various services in that Article is a disparate one. This makes it difficult for inferences to be drawn from one of the services on that list as to what would be appropriate for the others as to the meaning to be given to the phrase "in connection with." But some guidance is available.

    Article 4(6) has been interpreted by the European Court of Justice as indicating that the test for its application is whether the use of the vehicle was something in the nature of a general service performed in the public interest: Licensing Authority South Eastern Traffic Area v. British Gas Plc., Case C-116/91 [1992] E.C.R. I-4071. In paragraphs 12-13 of its judgment the Court said:

     "12. Article 4 of Regulation No. 3820/85 makes provision for derogations from the general scheme laid down by that regulation. Consequently, that Article may not be interpreted in such a way as to extend its effects beyond what is necessary to safeguard the interests which is seeks to secure. Furthermore, the scope of the derogations which it lays down must be determined in the light of the aims pursued by Regulation No. 3820/85. It is evident from the first recital in the preamble to that regulation that the possibility of derogating from the Community rules must not undermine the objectives pursued in that area.

     "13. With regard to the interests which Article 4(6) of Regulation No. 3820/85 seeks to safeguard, the derogations provided for in that provision are based on the nature of the services in connection with which the vehicles are used. In that respect it is apparent from the list in Article 4(6) that the services envisaged by that provision are all general services performed in the public interest."

    In Ministere Public v. Pierre Goupil, Case C-39/95 [1996] E.C.R. I-1601 the court was concerned with the scope of Article 4(6) in its application to vehicles used for refuse collection and disposal: see also Amtsgericht Recklinghausen (Germany) v. Hans Mrozek and Bernard Jager, Case C-335/94 [1996] E.C.R. 1-1. In paragraphs 10-11 of its judgment in the Goupil case the Court made the following observations which indicate the context within which the application of that Article to the present case must be decided:

     "10. The purpose of the regulation, as the first recital in its preamble states, is to harmonize conditions of competition and to improve working conditions and road safety.

     "11. In the light of those objectives, and primarily that relating to the improvement of road safety, the term 'refuse collection' should be interpreted as applying only to the collection of refuse from a place where it has been deposited. Vehicles used for that activity travel over a limited distance and for a short period, and the transport remains ancillary to the collection. Refuse transport which does not have those features cannot fall within the exemption. It is for the national court to determine in each case before it whether that is so."

    In paragraph 13 the Court said that, within the limits which it had defined, the movement of vehicles when empty and when preparing to carry out such transportation also fell within Article 4(6) of the regulation. In Reith v. Skinner, 1996 S.L.T. 1302 that decision was applied in a case where a vehicle used for collecting waste vegetable oil for recycling from various premises throughout Scotland was held not to have the benefit of the exception. In Vehicle Inspectorate v. Moss, 10 March 1998 (unreported), the Divisional Court held that a lorry which was being used to transport a lining machine to a site where both the lining machine and the lorry were to be used for highway maintenance was not being used in connection with highway maintenance and control when it was stopped in the course of its journey to the site.

    It is plain that some limit must be set to the width of the expression "in connection with" in the context of highway maintenance if the derogation is not to defeat the purpose of the regulation. Highway maintenance and control is an activity which can be defined with reasonable precision by reference to the works which are taking place on site. While the works are going on vehicles which are being used for the purpose of highway maintenance may travel some distance away from the site, for example when they are removing rubble or other material from the highway to a place of disposal and returning empty from that place to the site. Their journeys to and from the site in the course of that work will be "in connection with" highway maintenance. Other examples may be envisaged, such as where vehicles are being driven from a highway maintenance yard or depot in the locality so that they can be put to work, used or operated that same day in highway maintenance. Their transportation from the local yard or depot to the site of the works, and their return there at the end of the working day, will involve travel over short distances and for short periods. As in the example provided by the movement over short distances of empty refuse collection vehicles, the movement of such vehicles within these limits will be ancillary to, and thus "in connection with," their use in highway maintenance.

    But there is a clear and obvious difference between the movement of such vehicles to and from the site in the course of the day's work there by that vehicle and the use of vehicles for transporting highway maintenance equipment from one site to another prior to the commencement of the works. On the whole, vehicles which are to be used or have been used that same day in connection with highway maintenance and control do not travel far from the site where the work of highway maintenance is being carried out. But the transportation of equipment to or from the site may be over long distances. It may take place before the works have begun on site or after they have been completed there. The purpose of using the vehicle which is being used to move the equipment is simply that of transportation. Such use is indistinguishable from the business of transporting equipment by road hauliers who are in business as such and not as the providers of highway maintenance services. It would be contrary to the principle that conditions of competition should be harmonised to permit the providers of highway maintenance services to dispense with the use of the tachograph when transporting equipment to or from the site while road hauliers who were providing the same service were obliged to make use of the tachograph.

    In my opinion the appellant has failed to bring the use of the vehicle at the relevant time within the exception provided by Article 4(6). There was no evidence that the works for which the planing machine was to be used were about to commence or were in progress when the vehicle was stopped. Neither the place nor the date where the vehicle which was transporting it was to be put to use in works of highway maintenance were identified. There was nothing to indicate that the work on which the vehicle was engaged was anything other that the ordinary process of carriage by road within the meaning of Article 1 of Regulation No. 3820/85. The expression "carriage by road" is defined in that Article as meaning "any journey made on roads open to the public of a vehicle, whether laden or not, used for the carriage of passengers or goods." On the facts which were found proved by the justices, there was nothing to distinguish the journey on which this vehicle was engaged from any other journey involving the carriage of goods from one place to another.

    For these reasons, and for the reasons given by my noble and learned friend Lord Clyde with which I agree, I would dismiss the appeal.

LORD CLYDE

My Lords,

    The appellant in this appeal was prosecuted along with one of its drivers, Anthony Richard Cheetham, for, in each case, an alleged breach of section 97(1)(a)(iii) of the Transport Act 1968. The Summons stated that on 30 July 1996 on the A1 road at Colsterworth in the County of Lincolnshire the appellant and the driver were using a vehicle in which the recording equipment installed was not used as provided by Article 15(2) of E.E.C. Regulation 3821/85. A current tachograph record was not being kept. However in terms of Article 3(1) of the regulation the vehicles referred to in Article 4 and 14(1) of E.E.C. Regulation 3820/85 were excepted from the obligation. Article 4(6) of the latter regulation provides that "This regulation shall not apply to carriage by: . . . vehicles used in connection with . . . highway maintenance and control . . . ." The defence was that the vehicle in question fell within that exception.

    The vehicle was a tipper lorry. It was at the time drawing a trailer on which was a road planing machine. The facts stated by the justices are meagre. They recorded that at the alleged date and place, at 21.50 hours, the lorry was being driven by Anthony Richard Cheetham, and that he was unable to produce a tachograph record for 30 July 1996, although he was carrying a log book and the vehicle was fitted with a tachograph. They found that the vehicle was a 3 axle tipper lorry with a 3 axle drawbar trailer and that the road planing machine was being carried on the trailer. They found that the appellant was the user of the vehicle and were the employers of Anthony Richard Cheetham. They then stated: "The tipper lorry and trailer were being used to transport the road planing machine to a site so that it could be operated" and:

     "The road planing machine was only capable of being used to plane roads when being used with another vehicle. It could not be driven independently and had to be transported from site to site on a low loader or similar vehicle."

The justices sustained the defence on the ground that the exception in Article 4 of Regulation 3820/85 applied. The Divisional Court held that they were in error in so holding.

    There are a number of guidelines to the application of Article 4 which can be gleaned from the European jurisprudence, and in particular paras. 12 and 13 of the judgment in Licensing Authority South Eastern Traffic Area v. British Gas Plc. [1992] E.C.R. 1-4071. First, since the Article contains derogations from the general scheme of the Regulation, its effects are not to be extended "beyond what is necessary to safeguard the interests which it seeks to secure." (para. 12) Secondly, the basis of those interests is to be found in the nature of the services in connection with which the vehicles are used, and those services are all general services performed in the public interest. Thirdly, the scope of the derogations must be determined in the light of the aims pursued by the Regulation, that is essentially, to quote the preamble to the regulation, "the harmonisation of conditions of competition between methods of inland transport, especially with regard to the road sector and the improvement of working conditions and road safety." The Article must accordingly be so construed as to avoid or at least minimise any effect on competition between methods of inland transport. So the derogations should not be allowed to apply to work of carriage which could be carried out by a professional road haulier as well as by the person carrying out the particular public service so as to create a competition between them. It is to be noticed that the preamble records the desirability of bringing up to date "the exceptions for certain categories of vehicles," which evidently included the need to recognise that services performed in the public interest could well be carried out by vehicles in the private sector, performing the services for public authorities. Fourthly, regard has to be had to the further purpose indicated in the preamble of the improvement of working conditions and road safety. Encouragement then is to be given to the imposition of limitations on driving periods in the interest of the welfare of the drivers and also with a view to avoiding danger to other road users through drivers of carrier vehicles becoming fatigued through excessively long periods of driving. Finally, and more generally, it is to be remembered that the language of the Regulation should not be subjected to too nice or precise an analysis, but should be construed and applied so as to achieve the objects of the legislation.

    On the other hand, attention must be paid to the words used by the regulation and a construction adopted which gives sufficient effect to them. It seems to me that to restrict the application of the exceptions to the strict limits of the particular activities specified in the list of exceptions would be too narrow an approach. The language used in the various paragraphs of Article 4 deserves attention. In several cases the paragraphs refer to "vehicles used for" particular operations. That appears to point very precisely to the operation itself. So also may exception number 7, "vehicles used in emergencies or rescue operations." But, in contrast with that, exception number 6 uses the expression "in connection with", which seems to me to admit of some greater latitude. Further it is to be remembered that at least in the context of Regulation 3820/85 Article 4 is throughout dealing with matters of carriage. I find it difficult to find much content for exception 6 if the content is restricted to the precise conduct of the activities in question. While some of the various exceptions obviously involve carriage in their operation, such as the carriage of postal articles, the collection and disposal of refuse, and perhaps the detection of radio or television transmitters, it is far less easy to identify the carriage which is inherent in the actual operation of flood protection, for example, or the carrying on of radio and television broadcasting. It seems to me necessary to allow for the inclusion of carriage not only at the site or in the operation, but some carriage outside the actual operation.

    So far as the particular exception with which the present appeal is concerned, the relevant exclusion is not the carriage by vehicles used in highway maintenance, but by vehicles used in connection with highway maintenance. The risk of danger to other road users through carriage by drivers of vehicles actually engaged on road maintenance does not seem to me to be a very real one. It is unlikely that other road users would be driving over the very area which was at the time actually undergoing maintenance work. Even if a road user was to travel on an area currently subject to maintenance but not actually being subjected to maintenance work, such as a temporary road surface, the risk of an accident through the fault of a fatigued lorry driver engaged in carriage at that same area seems a somewhat remote contingency to provide sufficient substance for the exception. It seems that some carriage of some kind outwith the actual site of the work should in principle be allowed within the exclusion. But if the guidance already referred to is borne in mind, it is evident that some limit has to be set on the extent of the connection which is permissible. A remote connection will not meet the requirement that the purpose of the Regulation must be secured. There must be a close connection. But the language of remoteness or closeness is not of immense assistance, except as an indication that in some cases the eventual solution may require to rest upon an assessment of the particular facts. From para. 11 of the judgment of the court in Ministere Public v. Pierre Goupil [1996] E.C.R. 1-1601 it may be concluded that the transport must at least be ancillary to the activity specified in exception 6. At the least that would suggest that where a significant purpose of the journey is for something other than the carrying out of the road works, then the carriage may not qualify under the exception. Indeed, where there is a mixture of purposes, it is to be noticed that in the British Gas case [1992] E.C.R. 1-4071, 1-4094, para. 21 the court held that Article 4(6)

     "applies solely to vehicles used, at the relevant time, for carriage wholly and exclusively in connection with the production, transport or distribution of gas . . . ."

    In the present case we are concerned solely with the carriage of a very substantial machine in the course of a journey of quite considerable length. At the time in question the vehicle was engaged solely in the operation of the carriage of the machine. The use of a vehicle to carry a substantial machine to a site with the intention that at that site it might be put to use for the purpose of road maintenance work seems to me at least as a matter of generality too remote a use to qualify as a use in connection with road maintenance. But the matter is eventually one of fact and I find the factual basis on which the justices proceeded to be inadequate. I am not persuaded that on the facts found they were entitled to draw the conclusion which they drew. The mere fact that the plant was being transported "to a site so that it could be operated" does not in my view establish a sufficiently close connection to admit the exception. It is not said where or when the use of it was to be made. Nor did the justices evidently take account of the distance over which the plant required to be carried, although the distance of the journey was clearly relevant and in the present case of considerable significance. What the justices did find was that the lorry was being used at 21.50 and, according to the evidence of the traffic examiner who saw the vehicle at that time, it had, according to the log book, set out at 0700 hours that morning. From the same source of evidence it appears that Cheetham lived in Bardney, Lincolnshire, and at the time was driving to Bardney. These circumstances make it all the more incumbent upon the appellant to fortify his contention beyond the mere matter of carriage to a site so that the plant could be operated, and it does not seem to me that the justices were entitled to conclude that the exception applied on the basis of that vague proposition. At the end of the day the application of the exception is a matter of the facts and circumstances of the particular case. The inadequate exploration of the facts in the present case makes it an unsatisfactory vehicle for the resolution of matters of principle but on such material as there is I consider that the appeal must fail.

    An argument was presented before us along a line which does not appear to have been developed in the court below directed to the absence of any evidence to show that the lorry was providing services within the public interest whilst under the control of a public authority. This approach was sought to be supported by the decisions in Amtsgericht Recklinghausen (Germany) v. Hans Mrozek and Bernard Jager [1996] E.C.R. 1-1573 and Ministere Public v. Pierre Goupil [1996] E.C.R 1-1601. I accept that there is some force in the contention that at the stage of transporting plant to a site a private contractor may not be under the same kind of controls imposed by a public authority as may restrict his actual performance of the contract work and I would regard this point as another deficiency in the findings. But it is essentially upon the inadequacy of the findings in the matter of the connection that I consider that the decision of the justices cannot be supported.

    For the foregoing reasons and in agreement with the speech which has been prepared by my noble and learned friend Lord Hope of Craighead I would dismiss the appeal.

LORD HUTTON

My Lords,

    I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Clyde. For the reasons they give I, too, would dismiss this appeal.

 
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