Vehicle & Operator Services Agency v Hobbs [2010] EWHC 343 (Admin)

Case No CO/9591/2009[2010] EWHC 343 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 4 February 2010
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE WALLER
MRS JUSTICE SWIFT DBE
Between
VEHICLE AND OPERATOR SERVICES AGENCYClaimantv
Between
HOBBSDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR T NESBITT appeared for ClaimantMS N ISAACS appeared for Defendant
J U D G M E N T

LORD JUSTICE WALLER:

[1]This is an appeal by way of case stated from the Justices for the County of Cornwall sitting at Bodmin. The respondent is a Mr Hobbs. He was charged with five different offences relating to the use of his agricultural tractor on 28 September 2008.[2]He was, on that day, driving what is described as a Renault two axle tractor towing a two axle loader drawbar trailer laden with a dumper truck. He was stopped, the tractor and trailer were not his, they were borrowed, but nothing turns on that. He was collecting a dumper truck from a farm of a Mr Robinson, to whom the dumper had been loaned, and bringing it back to the farm he farmed in partnership with his parents. The evidence was that Mr Robinson had been using the dumper for poultry muck, and what Mr Hobbs said in interview was that he and his parents used the dumper for mucking out sheds, tipping and work on the farm, and for making tracks on the farm.[3]The five offences with which the appellant is charged are set out in the case stated, they are that he:
"1. Unlawfully used a goods vehicle registration mark R544 VDV on a road fro the carriage of goods for or in connection with any trade or business carried on by him when he was not the holder of an Operator's licence which authorised the said vehicle, contrary to section 2(1)(b) and 5 of the Goods Vehicles (Licensing of Operators) Act 1995. 2. Used motor vehicle registration mark R544 VDV in which the recording equipment had not been installed in accordance with the Community Recording Equipment Regulations, as required by Article 3of EEC 3821/85 on recording equipment in road transport, contrary to section 97(1)(a)(i) of the Transport Act 1968. 3. Used on a road a mechanically propelled vehicle registration mark E544 VDV when a higher rate of duty was chargeable and which had not been paid in respect of the licence for the vehicle under section 15 of the Vehicle Excise and Registration Act 1994 contrary to section 37(1)(a)(b)(c) and 2(a) or (b) of the said Act. 4. Did drive motor vehicle R544 VDV namely a 5100 kilogram Renault 2 axle agricultural tractor towing a 2 axle low loader drawbar trailer, requiring a class C1 + E driving licence, on a road otherwise than in accordance with a licence authorising him to drive vehicles of that class, contrary to section 87(1) of the Road Traffic Act 1988 and schedule 2 to the Road Traffic Offenders Act 1988. 5.

(a) and (2) off the said Act"

. I set them all out despite the fact that, as will appear, this appeal actually only relates to the first charge, which was charging Mr Hobbs with using the vehicle on a road for the carriage of goods when he was not the holder of an Operator's licence.[4]When the matter came before the magistrates, it seems that it was fought on the basis that, if Mr Hobbs was acquitted of the first charge, the Operator licence charge, then he would not be guilty of any of the other offences. That led it to be common ground that the critical issue for the magistrates was whether the dumper truck was an agricultural implement, because if it was it fell within a relevant exception and he would not have had to have an operator's licence. Mr Nesbitt has shown us today that it would be wrong to approach the case on the basis that the test under all five of the charges was precisely the same. What does appear to have been the position is that, if this dumper truck was a farming implement, then it is unlikely that he would have been guilty of the other offences. So far as this appeal is concerned, the concentration has been on the first charge, that relating to the operating licence.[5]The provisions in relation to the requirement to have an Operator's licence flow from the Goods Vehicles (Licencing of Operators) Act 1995. It is unnecessary to set out the provisions of that section, all it is necessary to do is to record that, by part 2 of the schedule to that Act, there are certain exceptions specified. The first exception relates to:
"Hauling - (a) threshing appliances; (b) farming implements; (c) a living van for the accommodation of persons employed to drive the tractor; or (d) supplies of water or fuel required for the tractor"
. The relevant exception, if there is to be one in this case, was farming implement. Since this is an exception, the onus would be on Mr Hobbs to demonstrate, on the balance of probabilities that he came within that exception.[6]The facts found by the magistrates were that Mr Hobbs was a self-employed farmer who lived and worked on his parent's 192 acre beef and sheep farm at Tregenna, Treneglos, Launceston, Cornwall, and he was a partner in the farming business together with his parents. They found that Mr Hobbs had loaned the dumper truck to a fellow farmer, Mr Robinson, in the autumn of 2007 in order for him to muck out his poultry sheds and do a few other small jobs. Mr Robinson did not pay for the loan of the dumper truck. It remained at Mr Robinson's smallholding until 23 September 2008. Mr Robinson himself was unable to return the dumper truck because he had a broken ankle, and so Mr Hobbs borrowed a tractor and trailer from another local farmer and brought the dumper from Mr Robinson's smallholding to Mr Hobbs' own farm. Again, Mr Hobbs did not pay for the loan of the tractor and trailer, but nothing turns on that. The magistrates also found that Mr Hobbs required the return of the dumper truck so that he and his parents could resurface and reinstate the farm tracks leading to all the fields on the farm, and the dumper was also to be used for excavating drainage ditches, taking away spoil, and for improving banks.[7]Mr Nesbitt, on this appeal, has emphasised certain points. First, he has drawn attention to the legislation, and pointed out that the object of the requirement for a person operating a vehicle on the road to have an Operator's licence, is so that vehicles carrying goods over a certain weight are kept in good condition, and so as not to place the public in danger. He did not much like the phrase that I used in argument, that it was concerned with the haulage business, but in essence, these provisions are aimed at people who operate the business of hauling goods along the public roads. He also made a further point which related to the ease with which prosecutions such as this can be approached by the magistrates. His submission was that the more certainty that could be given to the definition, such as a farming implement, the easier it would be for the magistrates to approach the matter, and indeed, he would add, the easier it is for the prosecuting authority to know precisely where it is. In that context he cited to us two authorities, the first was R v Thomas Scott reported in 1984 Road Traffic Reports at 337, that is a decision of the European Court of Justice, and a more recent decision of that court, not much more recent, which is Hamilton v Whitelock reported in 1988 Road Traffic Reports at page 23. Those authorities were concerned with the question whether a vehicle should have tachograph recording equipment on board, and thus was concerned with different aspects of the transport legislation.[8]R v Thomas Scott was concerned with a vehicle of more than 3.5 tonnes which was carrying cakes and matters of that sort. What the court there suggested was the appropriate test as to whether the vehicle was one which should carry a tachograph was in the following terms. There, the question was whether the vehicle was a specialised vehicle, and what the court said is:
"The answer to the first and third questions should therefore be that the term 'specialised vehicle' for certain types of transport operations, within the meaning of article 14a (3)(a) of Council Regulation (EEC) No 543/69, is intended to cover exclusively vehicles whose construction, fitments or other permanent characteristics guarantee that they are used primarily for one of those operations, such as door-to-door selling."
[9]Mr Nesbitt correctly pointed out that, in the different context of Hamilton v Whitelock, the test has been slightly varied. Hamilton v Whitelock was concerned with a vehicle which had been adapted to be a breakdown vehicle, and the facts of the case were that, having been adapted for such a purpose, it was, on the particular day that it was stopped, actually not removing vehicles which had been in an accident or broken down, but was towing elderly motor cars for the purpose of the driver's business. The question was whether this adapted vehicle was a specialised breakdown vehicle, and whether it fell outside the exemption because of the way it was being used on that day. In that case, the court held that the test to be applied was whether it was a vehicle whose construction, fitments or other permanent characters were such that it would be used mainly for removing vehicles that had recently been involved in an accident or a breakdown for another reason. They also concluded that the fact it was used for a different purpose on a particular day did not effect the question as to whether it was such a vehicle. Mr Nesbitt would seek to read the above test across into the definition that we have to consider in this case, and he would submit that the test the magistrates should have applied was whether the construction, fitments or other permanent characteristics of this dumper truck showed that it was used mainly for farming purposes, or whether it was used mainly for other purposes. He would submit that this dumper truck was simply a dumper truck in the ordinary way one would think of a dumper truck. Thus, it had not been altered in anyway and its construction, fitments and other permanent characteristics were simply that of a dumper truck.[10]I cannot accept Mr Nesbitt's criticism of the magistrates, who approached this case, not by reference to the above test, but on the basis that they could ask themselves simply whether the dumper truck that was being carried on this day, even if a dumper truck cannot be used exclusively for farming purposes, was in fact being used for farming purposes. There will be many implements which will sometimes be used for farming and sometimes not used for farming; simple examples are forks, spades, buckets, matters of that sort. Nobody would ask the question whether their construction or permanent characteristics were ones that pointed in one direction or another. If a lorry was carrying a number of forks and a number of buckets for delivery to a hardware store for sale, then clearly such forks and buckets would not be farming implements. But, on the other hand, if the farmer has, in the back of a trailer attached to his tractor, a number of forks and a number of spades and some buckets which he was moving from one part of his farm to another along the main road, clearly those would be farming implements.[11]On any view, whatever the right test, or whatever guides to construction were given to the magistrates, there would always be factual issues for them to resolve. If one has to ask whether something is primarily used for something, or mainly used for something, that itself poses a factual question. I see no need to tie the magistrates to some more confined test by which they can ask themselves whether an implement is a farming implement. It will be a matter for them.[12]What I would stress, however, is that I am not saying that a farmer can simply say that, on a particular day, he is using something for his farm when the normal use for whatever he is hauling is for some non-farming purpose. That was not the situation in this case. What the magistrates were asking themselves in this case was whether this dumper truck was a dumper truck that was normally used by farmers for farming, and whether that was the dumper truck that was being hauled on this day.[13]Mr Nesbitt has a fall back point. He submits that when one goes to the findings of the magistrates in this case, their finding of fact was that this dumper truck was to be used to resurface and reinstate the farm tracks leading to fields on the farm, and also to be used for excavating drainage ditches, and taking away spoil and for improving banks. His submission is that, where a farmer is restating farm tracks, that is not farming. Laying tracks on a farm is no different from the resurfacing of roads outside the farm. In my view, again, that is too narrow a view. The farmers need tracks allowing them to move from one field to another; they need to excavate their drainage ditches; and they sometimes need to improve banks, all in the interests of good farming. Since the magistrates found that Mr Hobbs established that this dumper truck was normally used for farming and was being moved from a farm where it was used for farming back to a farm where it was again used for farming purposes, it seems to me that they were entitled to hold that Mr Hobbs had brought himself within the exemption. On this basis they were entitled to acquit him.[14]I would therefore dismiss the appeal.

MRS JUSTICE SWIFT: I agree.

[16]MS ISAACS: My Lord, can I make an application for costs from central funds for Mr Hobbs?[17]MR NESBITT: I cannot resist that.

LORD JUSTICE WALLER: From central funds, not from your funds?

[19]MR NESBITT: I believe so. I think that they would have to be (inaudible) I respectfully suggest although the court has been against me --

LORD JUSTICE WALLER: No, no, there is no suggestion of any impropriety, but sometimes budgets are quite important. If it is coming from central funds, you have your order for costs.