Mobile Project Vehicles

[MARTIN CROSS]

I must confess I prefer not to call exemptions loopholes as it implies that there is a wrondoing. The law was specifically drafted to allow certain exemptions and provided people comply with their requirements I don't see it as a problem.

Clearly there is always a question of interpretation and that is for the Courts.

M

[Stormin]

Loopholes or not, all I hope is that people driving big honking old trucks know what they are doing! Having the appropriate driver's license is the minimum requirement in my opinion. My EUR 0,02 worth,

Hanno

 

But what's more important the driver's competence as measured by a licence or the mechanical condition of the truck? Most of the trucks being driven on car licences are also claiming MOT exemption. The best driver in the world is no good if the brakes are shot.

[Guest catweazle (Banned Member)]

I must confess I prefer not to call exemptions loopholes as it implies that there is a wrongdoing.

M

You beat me to it.

Make use of and enjoy your legal rights while you have them.

Theres a lot more for you to lose yet.

Like working on your own vehicles without training and certification.

Ok you laugh its on its way.

Whether your driving on a car licence,claiming Mot exempt.

towing things around the arena,lifting things in demos.Blowing up things

I would suspect the majorty are doing it in the confines of the law.

You may not be certificated and you may not get your work checked out by someone who is.This doesnt mean your a danger to every other bugger around you.I believe in Education not Legislation.How many families have been wiped out by the unlicenced ,mot exempt mv owner.

Heres a good one for the people who like certificates of competence and rd worthyness.I roar around the solent un licenced untrained at 40 mph weighing 14 tns sinking dingys swamping poor little willy in his rubber ring

a real danger to all at sea.Of course i dont, no more than large mv owners do on the rd.

For most our life savings are in what we have thats why we educate our selves to be competent.

I have some symphathy with BP as i think there are more reasons being voiced against using the legal right and the question is why not use it if it is legal.I believe if you have what you believe to be a understanding of the the law in question,you are not in ignorance of the law,therefor a successful case against you could be in doubt.

I would also like to say ,John theres only room for one catweazle on here:stop::rofl:

[mcspool]

But what's more important the driver's competence as measured by a licence or the mechanical condition of the truck? Most of the trucks being driven on car licences are also claiming MOT exemption. The best driver in the world is no good if the brakes are shot.

Very good point! That certainly is an area where HMV clubs could do some good by vetting their member´s vehicles.

For example: instead of giving points for that MG mount or radio setup during show judging, the vehicle´s mechanical condition should be taken into account, too. Why not have a prize for "best maintained vehicle"?!?

 

- Hanno

[Adam Elsdon]

Catweazle, you are quite right of course, there is enough buear..bearacrey..beaurac.....bugger it, red tape without creating anymore, John, go forth with your hypothetical half track on a beaver tail thingy using Mobile Project Vehicles.....enjoy!

[xsk460]

Quote from Antarmike;

"how any loader/ beaver tail lorry, being used as an MPV, can have a primary use which Recreational, instructional/ educational, when parked up empty (stationary) having unloaded any MV at a show. The Loader/beaver tail will remain unconnected from the Exhibit for the length of the show, and the owner may even be asked to park it in a area of the field/ showground out of the public area. (a lorry park/ low loader park, or next to the exhibitors accomodation in a purely camping area.)"

 

Now don't shoot me on this one..... but if I were playing devils advocate, then surely there's some mileage in this???

 

I remember seeing a very large and beautiful looking vintage Gardner engine & generating set which was mounted as a display inside the back a modern rigid lorry, at a show I was at a few years back. The display had all the Bull5h17 boards up, with pictures from yesteryear, tech info, and details of the restoration, ect, ect. So I would guess that it would fit the MPV description??? Used when stationary... As an recreational/eductional display???

 

However, if your carting your mv on the back of an everyday modern wagon, just to get to & from the show, and then leaving it behind in the carpark whilst the show is on, would you not (worst case senario) have dificulties persuading a court that your transporter was in reallity nothing more than a 'Large goods vehicle'???

 

Once again I direct you to the case of VOSA v Greenfarms Ltd, though its not directly relevent to MPV's, it does shows how the pack of cards effect works- at the end of this case the driver of the vehicle in question had the book thrown at him.

 

Its an iteresting bit of case law, because initally VOSA lost at magistrates court, :yay: the magistrates agreeing with the interpretation of the law that the vehicle owner had made- intrestingly the DVLA had also taxed the vehicle as the owner had requiered, though this didn't save his neck in the end either!!! Unfortunatly VOSA pushed it to crown court, and well and truely won on appeal!!! :???

[Stormin]

 

Once again I direct you to the case of VOSA v Greenfarms Ltd, though its not directly relevent to MPV's, it does shows how the pack of cards effect works- at the end of this case the driver of the vehicle in question had the book thrown at him.

 

Its an iteresting bit of case law, because initally VOSA lost at magistrates court, :yay: the magistrates agreeing with the interpretation of the law that the vehicle owner had made- intrestingly the DVLA had also taxed the vehicle as the owner had requiered, though this didn't save his neck in the end either!!! Unfortunatly VOSA pushed it to crown court, and well and truely won on appeal!!! :???

 

Can you give us more details on the VOSA v Greenfarms case then? Sounds interesting, but the only site I can find with information seems to require a login. What was the actual offence or list of offences?

[Jack]

Thanks - this thread is turning back to a very worth while and interesting one.

 

...we can only cope with one CW.:coffee:

[Tony B]

It's the thought of a 40 ton Catweazle roaring around a showground at 40 mph that's frigtening me! :shake:

[xsk460]

Neutral Citation Number: [2005] EWHC 2270 (Admin)CO/4809/2005

 

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

 

The argument is whether or not this vehicle was a tractor as defined within that paragraph, and that paragraph provides:

"In sub-paragraph 2(a) 'tractor' means:

(a) an agricultural tractor, or

(b) a tractor (other than an agricultural tractor) which is:

(i) designed and constructed primarily for use otherwise than on the roads, and 2.

(ii) incapable by reason of its construction of exceeding a speed of 25 mph on the level under its own power."

The purposes specified in Part II of Schedule 3 to the Goods Vehicles(Licensing of Operators) Regulations are:

"1. Hauling-

(b) farming implements, and

2. Hauling articles for a farm required by the keeper being either the occupier of the farm or a contractor employed to do agricultural work on the farm by the occupier of that farm."

It is submitted by the appellants here that the Crown Court fell into error because the respondent's contention that the court should look at the term "agricultural motor vehicle", which was a term defined in the Construction and Use Regulations as "a motor vehicle constructed or adapted for use off roads for the purpose of agriculture and which is primarily used for one or more of those purposes". It does not seem to me that the definition of an agricultural motor vehicle in the Construction and Use Regulations is of much help in deciding whether this vehicle is a tractor within the meaning of the Vehicle Excise and Registration Act 1994.

Before us, Mr Hill, who did not appear for the respondents below, no longer relies on the Construction and Use Regulations. He relies on the case of Director of Public Prosecutions v Free's Land Drainage [1990] RTR 37, in which this court had to consider the definition of an "agricultural machine" in Part I of Schedule 3 to the Vehicle Excise Act 1997 as "an agricultural tractor which is not used on public roads". The court there felt unable to interfere with the justices' findings of fact, but the vehicle in that case was constructed and adapted for the purposes of agriculture and was primarily used for that purpose. No such findings of fact were or could have been made in this case. I do not think, therefore, that the case is of much help in considering the different findings of fact when applied to the different statutory provisions which we are considering in this case, which raises, in essence, the question of whether this vehicle was an agricultural tractor within the meaning of paragraph 4(3) of Part IV of Schedule 1 of the Vehicle Excise and Registration Act 1994.

It is important to bear in mind that it is for the respondents to establish on the balance of probability that any claim exemption applies. A director of the respondents was asked to attend at the Department for an interview. But, apparently acting on legal advice, he declined to do so. Since the defence called no evidence at the appeal, there was no evidence before the courts beyond that which was set out in the agreed statement of facts, as is recited in the case stated. It seems to me that considerable help is to be derived here simply from looking at the photographs, which, to my mind, show a standard Leyland DAF tractor unit and cab of a type obviously constructed as an ordinary commercial vehicle tractor unit, to which had been attached a converter dolly. The vehicle bears every appearance of still being an ordinary commercial vehicle tractor unit, to be used as part of a commercial articulated vehicle unit.

[xsk460]

There is no suggestion, or certainly no evidence, that there has been any alteration or adaptation of the engine; nor reduction of its power; nor the speed at which it might travel; nor change to its gearings; or even to its wheels or tyres. There was no evidence from the defence as to how, when, by whom, or for what purpose, or at what cost the vehicle was adapted or modified. There was no evidence for what purpose the vehicle was normally or primarily used. Indeed, there is no evidence at all, as Mr Laprell points out, as to any use to which the vehicle was put, except on the day in question (1 May 2003) when the vehicle was found pulling this load up the A1. There was no evidence as to whether the vehicle could readily be converted back into an entirely normal commercial vehicle tractor unit; nor of the work and skill necessary to do so; nor how long it would take to do so; nor the cost of doing so.

It is quite impossible to provide an all-embracing definition of an agricultural tractor. The exemption of agricultural tractors in the Regulations is plainly intended to help farmers as they drive along the road and as they go about work on or about the farm, otherwise they would be liable to pay the substantial charges to license their farm tractors as heavy goods vehicles.

In my judgment, the exemption is not in the least appropriate to cover the DAF commercial vehicle tractor unit pulling this huge tanker 50-odd miles along the A1. Quite simply, and indeed to my mind quite obviously, this vehicle was not "designed and constructed primarily for use otherwise than on the roads", to use the words of paragraph 4(3). On the contrary, it was designed and constructed for use on the roads and would be largely unsuitable to be used off the road. Furthermore, it was not incapable, by reason of its construction, of exceeding a speed of 25 miles an hour on the level under its own power.

In an extempore judgment, the judge here had to make his way through this statutory labyrinth, and, of course, I sympathise with him. The conclusions to which he came were short to the point of terseness. They are set out in the case stated. The court concluded as follows. The vehicle in question was originally a heavy goods vehicle; due to various modifications it was no longer a heavy goods vehicle. The vehiclecould not be a conventional heavy goods vehicle. It could not be commercially put back into its original use. The vehicle was an agricultural tractor and not a heavy goods vehicle.

For reasons I have already set out, I do not think that, on the evidence before Leeds Crown Court, the judge could properly have come to the conclusion that the exemption relied on by the respondents was made out. His findings, I observe, were made without any deep analysis of the evidence or indeed of the statutory provisions. Nor indeed is there any clear statement of the reasons by which he came to those conclusions. Turning then to the questions posed.

[xsk460]

(1) Whether the court was correct to find that the DAF goods vehicle combination Q409 KCP was, on 1 May 2003, in law an agricultural tractor? I would answer: no.

(2) Whether the court was correct to find that the aforementioned vehicle combination under (1) was incapable of being commercially restored to its original use as a Heavy Goods Vehicle in the light of the circumstances of the case, and in particular, the fact that it was hauling a slurry tanker up the A1 main public road when stopped by the Agency? This was not proved and so the answer to that also is: no.

 

Sorry about the bit by bit approch- theres more!

[xsk460]

(3) Whether the court was correct to find that the aforementioned vehicle combination under (3) above, in hauling a slurry tanker and its contents on the main public road, could properly be deemed to be hauling "farm implements" so as to satisfy the Goods Vehicle Operator Licence exemption set out in Parts I and II of the Goods Vehicle (Licensing of Operators) Regulations 1995, Schedule 3? This does not, strictly speaking, fall for answer in view of the answers we have given to questions (1) and (2). Whether this heavy semi-tanker which was vastly larger than an ordinary farm tanker is properly to be regarded as a farm implement, it seems to me is uncertain and it is unnecessary to decide. The word "article" is perhaps wide enough to cover nearly all inanimate objects. But even if this semi-tanker is an article within the meaning of Part II of Schedule 3 of the 1995 Act, hauling it this long distance may well not be properly regarded as agricultural work on the farm, but, as I have said, it is not strictly necessary to answer that question.

I turn then to the second charge, which alleged that the company permitted Mr Kettlewell to drive the vehicle when he did not have a Heavy Goods Vehicle Licence, which he did not. The question is whether he was required to do so when driving this vehicle. The statutory framework in respect of this charge is as follows. Under section 87(2) of the Road Traffic Act 1988:

"It is an offence for a person to cause or permit another person to drive on a road a motor vehicle of any class if that other person is not the holder of a licence authorising him to drive a motor vehicle of that class."

Regulation 6(1) of the Motor Vehicles (Driving Licences) Regulations 1999 provides that:

"where a person holds, or has held, a relevant full licence authorising him to drive vehicles included in any category or, as the case may be, sub-category he is deemed competent to drive ...

(b) all classes of vehicle included in any other category or sub-category which is specified in column (3) of Schedule 2 as an additional category or sub-category in relation to that category or sub-category... "

Schedule 2 includes, as an additional category, category F, which is:

"Agricultural or forestry tractors, including any such vehicle drawing a trailer."

The term "agricultural or forestry tractor" is defined in section 108 of the Road Traffic Act 1988 as follows:

"In this part of the Act-

'agricultural or forestry tractor' means a motor vehicle which-

(a) has two or more axles,

(b) is constructed for use as a tractor for work off the road in connection with agriculture ... and

© is primarily used as such."

Well, even if on 1 May this vehicle was after adaptation constructed for use as a tractor for work off the road in connection with agriculture, which seems to me to be highly doubtful, there is, as we have already stated, no evidence at all of its use, let alone of its primary use as such. It follows, therefore, that, in my judgment, the use of this vehicle on this day does not come within the definition of an agricultural tractor within the meaning of section 106. It follows that this conviction should be reinstated as well. The judge below did not specifically address this charge. He took the view that both charges stood or fell together. The case stated as originally drafted did not specifically address this question,

[xsk460]

but by late amendment the appellants seek to add question 6 in these terms: whether the court was correct to conclude that the aforementioned vehicle combination could be driven on a public road by the holder of a driving licence restricted to the classes of vehicle to which Mr Kettlewell, the driver of the vehicle, was restricted? The answer to that question, in my judgment, for the reasons we have given, is: no.

We should say something of the order for costs which the judge made against the respondents. Having succeeded below, the respondents were entitled to their costs, but they should have been paid from central funds. It is well-established by a long line of authority that no order for the payment of costs should be made against the prosecution unless they are in some way at fault. These conventions are set out in Part VII.1.1 of the Lord Chief Justice's Practice Direction (Costs) in Criminal Proceedings) issued on 18 May 2004. The paragraph is sub-headed: "Costs incurred as a result of unnecessary or improper act or omission". It provides that:

"... the Crown Court ... may order the payment of any costs incurred as a result of any unnecessary or improper act or omission by or on behalf of any party [to be paid by them]."

In my judgment, the prosecution here were properly discharging their public duty and an order for costs should not have been made against them. It follows, therefore, that question (4) is in these terms: whether the court was right to order that, following three separate costs orders in favour the respondent, the respondent be ordered to pay the appellant the costs of the appeal, claimed by him in the sum of £1,000-odd on the basis that the appellant was ultimately successful in the appeal, without there being any criticism of the respondent for having brought the prosecution? The answer is: no. And, in those circumstances, whether the balance should have been ordered to be paid out of central funds? To which, in my judgment, the answer is: yes.

We need not, I think, go on to address question 5, which deals with the balance of costs and whether reasons should have been given. But reasons should always be given for all orders for costs, particularly when, as here, the order made was unusual.

LORD JUSTICE GAGE: I agree. The statutory provisions which need to be considered in this appeal are complex. But in the end the issue is a simple one. It is whether the respondent had proved that the vehicle the subject of the first charge was an agricultural tractor.

Although the statutory provisions relating to the second charge are slightly different, the issue is essentially the same. The burden of proving the exemption in each case is agreed to be on the respondent. One look at the photographs taken of the vehicle on the date and at the time it was stopped by the appellants might well, in my judgment, cause a lay person to throw up his or her hands in astonishment if told that it was an agricultural tractor. It has all the appearances and characteristics of what it must have been designed to be, namely a heavy goods vehicle tractor unit. The Crown Court found that in paragraph 7.1.1 of its conclusions. That does not mean that this vehicle could not have been an agricultural tractor, but, in my view, it would have taken strong evidence to show that it was. The respondent called no evidence before the Crown Court on appeal from the justices. The facts are set out in an agreed statement of facts. Mr Hill, for the respondent, manfully tried to persuade this court that the Crown Court's findings of fact that this vehicle was an agricultural tractor were not capable of challenge. For my part, I remain wholly unpersuaded by those submissions. There was

[xsk460]

simply no sufficient evidence to support the inferences for which Mr Hill contends.

In my judgment, the lack of such evidence is borne out by the conclusions of the Crown Court set out in the case stated. The bald statement by the Crown Court that: "the vehicle was an agricultural tractor and not a heavy goods vehicle" does not overcome this difficulty.

With one slight exception I agree with the answers proposed by my Lord. The slight exception is in relation to question 4 relating to costs. I agree that the Crown Court should not have ordered the prosecution to pay the costs in the circumstances. So far as any order out of central funds in relation to the appeal before the Crown Court is concerned, this court will listen to submissions made on behalf of both parties as to what the appropriate orders of costs should now be in the light of the court's judgments.

MR LAPRELL: I am obliged. My Lord, that leaves the question of costs. In my submission, the prosecution have succeeded, and whether it be under this Practice Direction or under the ordinary rules, bearing in mind that we are in effect a hybrid case now. As I understand it, we are described on the documentation as, I think, claimant in the Administrative Court. I am bound to say I am never sure whether the civil rules apply to costs in these hearings, or the criminal rules. It is not a clear issue. But it may be that it does not make any difference.

LORD JUSTICE GAGE: I think that the civil rules -- no, hang on, this is a criminal matter, is it not?

MR LAPRELL: My Lord, it is a criminal matter, but I know that in the past, even before it became the Administrative Court, when it was the Divisional Court of the Queen's Bench Division, people appeared here on civil legal aid certificates.

LORD JUSTICE GAGE: Right, what are you asking us to do about costs?

MR LAPRELL: I am asking your Lordships to say that the defence should pay the prosecution costs at each stage.

LORD JUSTICE GAGE: We cannot assess you.

MR LAPRELL: Can I put it in this way: they lost in the Magistrates' Court. They should have lost in the Crown Court. They have lost here.

LORD JUSTICE GAGE: But so far as assessment is concerned, we cannot do that.

MR LAPRELL: My Lord, I do not believe that is feasible. Schedules have in fact been exchanged, but I doubt if your Lordships would wish to spend time when there is an alternative procedure available to you.

LORD JUSTICE GAGE: Yes, that is probably right. What do you say, Mr Hill?

MR HILL: I cannot resist the normal order for costs in that my client has been unsuccessful on this appeal. It must therefore follow that the costs which were awarded in his favour in the Crown Court, those costs effectively will fall on the appeal, although it was not one of the issues on the case stated.

As far as the Magistrates' Court is concerned, as my learned friend says, there already has been an order. We do not need be concerned with that.

LORD JUSTICE GAGE: That can remain, can it not?

MR JUSTICE OPENSHAW: Except it was presumably quashed by the Crown Court.

LORD JUSTICE GAGE: Sorry, we should reinstate the order for costs in the Magistrates' Court as it stood before the Crown Court, and direct that you pay the costs, both in the Crown Court and in this court, to be

[xsk460]

assessed in the usual way. Very well, that is the order we make. Thank you both, very much.

 

Well, there you have it!

 

It's all very tedious, but it does illustrate how it can all pan out... in a bad way! Daft thing is that after I had read this first time round, I did a bit of delving and found that even the judges had got mixed up on a point of law in this case!!!

[Grumpy]

But what's more important the driver's competence as measured by a licence or the mechanical condition of the truck? Most of the trucks being driven on car licences are also claiming MOT exemption. The best driver in the world is no good if the brakes are shot.

 

Just because a truck is MOT exempt doesn’t stop people having a voluntary test or at the very least a voluntary brake test.

 

A voluntary brake test is only £18 for a 3 axle HGV or £30 for a 6 axle HGV, that’s not a lot of money for peace of mind and an official bit of paper to produce should you need to. It would be interesting to do a pole to see how many run under MOT exemption & how many bother with a voluntary test.

Edited February 27, 2009 by Grumpy

[Adrian Barrell]

A lot of the vehicles running under the plating and testing exemption could not be put on a rolling road, I'm thinking 6x6 trucks with no centre diff. front brakes would be ok but not the rear.

 

The other problem could be knowing the weight codes for the brake test computer as I understand it.

 

Tapley meter?

[Grumpy]

A lot of the vehicles running under the plating and testing exemption could not be put on a rolling road, I'm thinking 6x6 trucks with no centre diff. front brakes would be ok but not the rear.

 

The other problem could be knowing the weight codes for the brake test computer as I understand it.

 

Tapley meter?

 

My Stolly had a regular voluntary brake test down at VOSA in Featherstone using a Tapley meter, still charged me for a 3 axle test tho. :???

I know you can buy your own but personally I think much better having the results issued by VOSA should you need to produce them in anger so to speak.

[Stormin]

Just because a truck is MOT exempt doesn’t stop people having a voluntary test or at the very least a voluntary brake test.

 

A voluntary brake test is only £18 for a 3 axle HGV or £30 for a 6 axle HGV, that’s not a lot of money for peace of mind and an official bit of paper to produce should you need to. It would be interesting to do a pole to see how many run under MOT exemption & how many bother with a voluntary test.

 

Thanks for that Grumpy.

Didn't realise it was possible to get just the brakes checked and at reasonable cost. The only thing to fear is that if your vehicles was to fail it would not then be allowed back out on the road. This would probably put a few people off.

There's is also more to vehicle safety than just the brakes.

[Stormin]

Thanks XSK460, for the reply on the VOSA v Greenfarms case.

 

It highlights the fact that the definition of tractor was not clear to the judges in the intial prosecution. I think that the definition of Mobile Project Vehicle is even less clear, and open to interpretation. It'll probably only be clarified in a future case. I wouldn't want to be the one to put it to the test.

[antarmike]

Quote from Antarmike;

 

Now don't shoot me on this one..... but if I were playing devils advocate, then surely there's some mileage in this???

 

I remember seeing a very large and beautiful looking vintage Gardner engine & generating set which was mounted as a display inside the back a modern rigid lorry, at a show I was at a few years back. The display had all the Bull5h17 boards up, with pictures from yesteryear, tech info, and details of the restoration, ect, ect. So I would guess that it would fit the MPV description??? Used when stationary... As an recreational/eductional display???

 

However, if your carting your mv on the back of an everyday modern wagon, just to get to & from the show, and then leaving it behind in the carpark whilst the show is on, would you not (worst case senario) have dificulties persuading a court that your transporter was in reallity nothing more than a 'Large goods vehicle'???

 

At last someone has cottoned on to what I am saying. I think the jury is out as to whether a MV arriving at a show, on its own wheels, and carrying information/ display boards can be an MPV.

 

However, if the vehicle is a transporter of some discription, that unloads an MV prior to the show, and the MV isn,t reloaded until after the show then it cannot be an MPV, since the MPV has to be primarily fulfiliing an educational, instructional, recreational role, when it is parked stationary at the show.

Edited February 27, 2009 by antarmike

[Grumpy]

Thanks for that Grumpy.

Didn't realise it was possible to get just the brakes checked and at reasonable cost. The only thing to fear is that if your vehicles was to fail it would not then be allowed back out on the road. This would probably put a few people off.

 

VOSA will not issue a roadworthiness prohibition - PG9 after a voluntary test unless it’s a major failing, but if it’s a major failing the vehicle should not be on the road anyway.

 

There's is also more to vehicle safety than just the brakes.

 

You can also book a full voluntary test if you wish.

[Grumpy]

At last someone has cottoned on to what I am saying. I think the jury is out as to whether a MV arriving at a show, on its own wheels, and carrying information/ display boards can be an MPV.

 

However, if the vehicle is a transporter of some discription, that unloads an MV prior to the show, and the MV isn,t reloaded until after the show then it cannot be an MPV, since the MPV has to be primarily fulfiliing an educational, instructional, recreational role, when it is parked stationary at the show.

 

Just leave it on the truck and only unload when going into the arena, remember it only has to be stationary as its “Primary” use, alternately get the correct licence for the class of vehicle and get some sleep at night.

[Stormin]

VOSA will not issue a roadworthiness prohibition - PG9 after a voluntary test unless it’s a major failing, but if it’s a major failing the vehicle should not be on the road anyway.

 

Thanks again Grumpy. Wasn't aware of that part either.

 

I think the cost of a full commercial test is insignificant when set against the other running costs of such a vehicle. Last time I had one done it was cheaper than my everyday car MOT.