Vehicle and Operator Services Agency v Greenfarms Ltd [2005] EWHC 2270 (Admin)

Case No CO/4809/2005[2005] EWHC 2270 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 16 November 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE OPENSHAW
Between
THE VEHICLE AND OPERATOR SERVICES AGENCYClaimant-v-
Between
GREENFARMS LIMITEDDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR MARK LAPRELL (instructed by Shulmans) appeared for CLAIMANTMR PIERS HILL (instructed by Ford and Warren) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE OPENSHAW: On 14 September 2004, the respondents, Greenfarms Limited, appeared before Leeds Magistrates' Court and were convicted of a series of offences; the two charges relevant to this appeal are these: the first charge being that, on 1 May 2003, at Boston Spa in West Yorkshire the respondent, Greenfarms Limited, unlawfully used a goods vehicle (registration mark: Q409 KCP) on a road for the carriage of goods or in connection with any trade or business carried on by the respondent when the respondent was not a holder of an operator's licence which authorised the said vehicle, contrary to section 2(1)(b) and (5) of the Goods Vehicle (Licensing of Operators) Act 1995; and the second charge alleging on the same occasion that the respondent permitted Mark Kettlewell to drive a motor vehicle (registration mark: Q409 KCP), namely a DAF articulated goods vehicle tractor unit, coupled with a single axle converter dolly, coupled to a two-axle semi trailer, with a combined maximum train weight of 38,000 kilograms on a road otherwise than in accordance with a licence authorising him to drive vehicles of that class, contrary to section 87(2) of the Road Traffic Act 1998 and Schedule 2 to the Road Traffic Offenders Act 1988.[2]On 18 February 2005, HHJ MacGill, sitting with magistrates in the Crown Court at Leeds, allowed appeals against those convictions and ordered that the Vehicle and Operator Services Agency, who prosecuted, pay £1,000 and more towards the respondent's costs. The prosecution now appeal to this court by way of case stated against that decision.[3]The facts found are as follows. On the afternoon of 1 May 2003, a traffic examiner from the Vehicle Operator Services Agency was conducting a road check on the A1 at Boston Spa when a DAF goods vehicle combination was brought in for examination by the police. The technical description of the vehicle combination is as follows: it was a DAF two-axle articulated drawing unit, from which the fifth wheel coupling bed plate had been removed and replaced by a counterbalance weight box, and the rear of the vehicle had been fitted with a coupling compatible with a rigid drawbar. Attached to the coupling was a single axle converter dolly, upon which was fitted a fifth wheel coupling bed plate. Mounted to the fifth wheel coupling was a two-axle semi-trailer tank containing a load of liquid fertiliser, whether it was slurry or not is unclear. The vehicle was weighed and the gross train weight of the vehicle combination was found to be 37,150 kilograms, or 40-odd tonnes. One might interpose that that weight is near to the statutory maximum.[4]The driver of the vehicle was Mark Kettlewell. He was employed by the respondent, Greenfarms Limited, and was acting in the course of his employment at the time. He was driving the load from the respondent's base at Swillington Common Farm, Selby Road in Leeds, to the respondent's other farm at Catterick in North Yorkshire, which involved the vehicle travelling along the A1 northbound -- a distance, I might add, of nearly 50 miles. The respondent did not hold at the material time an operator's licence for any vehicle, and he knew that Mr Kettlewell did not have a Heavy Goods Vehicle Vocational Driving Licence. He was indeed only the holder of an ordinary car licence. He had never passed a driving test for a Class 1 Heavy Goods Vehicle.[5]The statutory provisions relating to the first charge are complex and I set them out as follows. Section 2(1)(b) of the Goods Vehicle (Licensing of Operators) Act 1995 provides:
"Subject to sub-section (2) and Section 4, no person shall use a goods vehicle on a road for the carriage of goods ... (b) for or in connection with any trade or business carried on by him, except under a licence issued under this Act; and in this Act such a licence is referred to as an 'Operators Licence'."
[6]Section 2(2) of the same Act provides that sub-section (1) does not apply to:
"(d) the use of a vehicle of any class specified in the Regulations."
[7]By section 33(1) of the said Act, the classes of vehicles specified under section 2(2)(d) as being classes of vehicle to which section 2(1) does not apply are the classes mentioned in Part I of Schedule 3 of the Goods Vehicles (Licensing of Operators) Act 1995. Part I of Schedule 3 provides that amongst the classes of vehicles for which a licence is not required is "any tractor as defined in paragraph 4(3) of Part IV of Schedule 1 to the Vehicle Excise and Registration Act 1994 (as originally enacted) whilst being used for one or more of the purposes specified in Part II of this Schedule".[8]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."
[9]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."
[10]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.[11]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.[12]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.[13]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.[14]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.[15]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.[16]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 vehicle could 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.[17]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.[18](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.[19](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.[20](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.[21]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."
[22]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."
[23]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 (c) is primarily used as such."
[24]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, 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.[25]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]."
[26]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.[27]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.

[29]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 simply no sufficient evidence to support the inferences for which Mr Hill contends.[30]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.[31]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.[32]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?

[34]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?

[36]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.

[38]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.

[40]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?

[42]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.[43]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 assessed in the usual way. Very well, that is the order we make. Thank you both, very much.