Driver And Vehicle Standards Agency v Rowe

This is an appeal by way of case stated from a decision of Deputy District Judge Kevin Gray sitting at Exeter Magistrates’ Court on 19th May 2016 acquitting the Respondent (“Mr Rowe”) of two charges: one of using a vehicle without a tachograph contrary to Section 97 of the Transport Act 1968 (as amended) and the other of using a vehicle without an Operator’s licence, contrary to section 2 of the Goods Vehicles (Licensing of Operators) Act 1995. The Respondent was convicted of having no MOT test certificate. He pleaded guilty to not having a driving licence permitting him to drive the class of vehicle he was driving.

The appeal is brought by the DVSA, the government agency responsible for, amongst other things, enforcing the safe operation of goods vehicles in the UK.

The facts are not in dispute and are set out in the case stated. Mr Rowe runs a mobile catering business, MJR Catering. He uses a goods vehicle with a trailer on which he tows a catering kiosk. He is a member of the Showmen’s Guild. He maintains he is exempt from having to have an operator’s licence or having to run his vehicle with tachographs.

While formally the appeal before me is conducted by reference to two specific questions, to which I shall come, the issue on this appeal is best expressed in a broader question: was the Deputy District Judge right to find that the Defendant’s vehicle was “a goods vehicle permanently fitted with …. some …. special type of body or superstructure forming part of the equipment of the show” under section 62 of the Vehicle Excise and Registration Act 1994, so as to exempt the Respondent from having to hold an operator’s licence and from having to use tachographs?

This appeal is not concerned with legislation governing the requirement to have a test certificate (MOT) nor with legislation governing the appropriate licence entitlement to drive a specified class of vehicles.

The existence of a regulated licensing system through which the road haulage industry operates is prescribed by EU law under a series of Council Directives: 74/561/EEC, 96/26/EC and 1071/2009/EC. This legislation provides that in order to be allowed to operate road haulage vehicles, operators have to satisfy a number of requirements, aimed at ensuring road safety and the protection of haulage drivers.

The domestic legislation that fulfils that obligation is the Goods Vehicles (Licensing of Operators) Act 1995 (‘the 1995 Act’). Operator licences are granted by Traffic Commissioners in eight regional traffic areas, on the demonstration of the possession of the qualifying requirements. For those operating as third party hauliers these include matters such as good repute, financial standing and professional competence. For those using goods vehicles for their own purpose the requirement is the lower one of fitness. There are also other requirements such as the designation of a transport manager and the maintenance of an operating centre where vehicles are parked when not in use.

On being granted a licence the operator has to agree to a series of undertakings (these relate mostly to maintenance standards and drivers’ hours) aimed at further ensuring public safety. Operators can be called to inquiry by Traffic Commissioners who regulate proper compliance with the operators’ licensing regime, including minimum standards of maintenance and prescribed regular safety inspections. Traffic Commissioners have the power to revoke, suspend or curtail an operator’s licence, as well as the power to disqualify individuals from holding an operator’s licence. In effect, an operator called to public inquiry can has his business shut down by a Traffic Commissioner.

The means by which one arrives at the exemption which is in question in this case is somewhat Byzantine, as follows.

Section 2 of the Act prohibits the use of a goods vehicle for the carriage of goods “for or in connection with any trade or business” without the operator of the goods vehicle possessing a licence issued under the Act.

“Goods vehicle” is defined in section 58 (1) of the Act as a “ motor vehicle constructed or adapted for use for the carriage of goods, or a trailer so constructed or adapted…”.

Subsection 2(5) makes it an offence to use a goods vehicle in contravention of the requirement to hold a licence. Subsection 2(2) provides for certain exemptions, including (d) “the use of a vehicle of any class specified in the regulations”.

The existence of exemptions reflects a permission granted in the relevant Regulations for Member States to:

"after consulting the Commission, exempt from the application of all or some of the provisions of this Directive road haulage undertakings engaged exclusively in national transport operations having only a minor impact on the transport market because of: the nature of the goods carried, or the short distance involved."

The relevant regulations encapsulating the UK's exemptions are the Goods Vehicles (Licensing of Operators) Regulations 1995.

Regulation 33(1) of the Goods Vehicles (Licensing of Operators) Regulations 1995 provides that “the classes of vehicle” under section 2(2)(d) for which an operator’s licence is not required are specified in Part 1 of Schedule 3 of the Regulations.

Part 1 of Schedule 3 of the Regulations lists 29 classes of vehicles for which an operator’s licence is not required. Paragraph 22 on the list exempts: “A showman’s goods vehicle and any trailer drawn thereby.”

Regulation 3(2) defines a “showman’s goods vehicle” as having the same meaning as in section 62 of the Vehicle Excise and Registration Act 1994.

Section 62 of the Vehicle Excise and Registration Act 1994 defines a “showman’s goods vehicle” as,

“a showman's vehicle which—

(a)

is a goods vehicle, and

(b)

is permanently fitted with a living van or some other special type of body or superstructure forming part of the equipment of the show of the person in whose name the vehicle is registered under this Act”

(A showman’s vehicle is defined as a vehicle:

“(a)

Registered under this Act in the name of a person following the business of a travelling showman, and (b) used solely by him for the purposes of his business and for no other purpose”.)

The purpose behind the rules and the exemption was largely common ground. The Rules exist to promote road safety. The exemptions exist in relation to certain categories of vehicle which are deemed to have only a minor impact on the transport market and not to require the same types of precautions because of the nature of the goods carried by those vehicles and the short distances involved.

There is one other legislative provision in question in this appeal, which pertains to the tachograph usage. Section 97 of the Transport Act 1968 (as amended) enforces EEC No 3821/85 and EU 561/2006, both of which regulate the use of tachograph equipment in vehicles over a certain weight. Article 13 of 561/2006 sets out the types of vehicles exempt from the requirement to have recording equipment fitted and used. Article 13(j) exempts: “specialised vehicles transporting circus and funfair equipment”.

In terms of the approach I should take to the construction of these provisions I was assisted by reference to Bennion on Statutory Interpretation (6th ed) and in particular:

On 3 October 2015 Mr Rowe was driving his lorry P419 JJA which he had bought in 2010. It is a rigid 7.5 ton MAN vehicle in cream and red. He was towing a catering kiosk loaded onto a trailer and was on his way to Ilminster carnival when he was stopped by the Appellant on the A361 at Sampford Peverell. The lorry was loaded with a generator, two refrigerators, catering equipment and food and drink to sell at the carnival.

There is no dispute that the lorry did not have an MOT certificate, had no tachograph recording equipment fitted and that Mr Rowe did not have an operator’s licence.

When interviewed at the scene Mr Rowe confirmed that he did not have an operator’s licence: he assumed he was exempt as he was using a showman’s vehicle.

The reason why Mr Rowe considered that his lorry fell within this provision was that he had had fitted inside the rear of the lorry a permanent generator. That generator, which occupies somewhat over half the space in the lorry, is attached to a metal frame, which is itself attached to the floor and the sides of the lorry’s rear space. It has an exhaust flue for which purposes a small hole has been made in the roof of the lorry, and from which protrudes a short length of exhaust pipe. This pipe is not readily visible from the outside of the lorry (it is either not visible or barely visible in the photos put before the court below and which were attached to the Case Stated).

It is common ground that the vehicle was not fitted with a living van; and hence any exemption had to be via the route of being permanently fitted with a special body or superstructure.

The relevant case law is not plentiful and is not in issue. In Cleansing Service Group Limited v Vehicle & Operator Services Agency [2006] EWHC 662 (Admin) the court considered the practice of a business that was contracted with a water authority to collect treated sewage and transport it to farms where it was used as fertiliser. For that purpose they used a tractor unit towing a trailer. They did not have an operator’s licence under section 2(5) of the Goods Vehicle (Licensing of Operators) Act 1995. The issue before the Court was whether another of the exemptions (that applying to tractors “hauling articles for a farm required by the keeper) applied. In giving the judgment of the Court Sullivan J made the following observation:

“Some system of regulating haulage operators is clearly required in order to protect public safety. It is therefore understandable that Parliament has prescribed the limits placed upon the exceptions with some care. In my view it is not a question of giving the exceptions a broad or narrow interpretation. There is no reason other than to give them their ordinary and natural meaning.”

The case which was agreed to be most pertinent was Vehicle and Operator Services Agency v Kayes [2012] EWHC 1498 (Admin). That case is closely similar on the facts; indeed I am told that Mr Kayes was stopped at the same geographic location as Mr Rowe. Mr Kayes provided catering from kiosks at shows and fairs. His kiosks were transported by a lorry “purposely built” for catering and the lorry was used for that purpose alone. His lorry was somewhat different from Mr Rowe's however. Essentially the lorry in question was a three axle flatbed lorry onto which a catering trailer/kiosk was fitted for transport. The lorry also had a compartment behind the vehicle cab containing a generator, drinks and equipment.

As in this appeal, Mr Kayes was prosecuted for not having an operator’s licence and not using tachograph equipment. He relied on the same statutory exemptions as in the present appeal, namely that his vehicle was a showman’s goods vehicle. This in turn required the court to consider in detail some of the constituent parts of section 62 of the Vehicle Excise and Registration Act 1994.

The argument at first instance and consequently on appeal focussed on the trailers/kiosks and not on the apparently bespoke compartment containing the generator. I should note that in Kayes while Mr Sadd, then as now, represented DVSA on appeal, Mr Kayes was unrepresented. In this case the arguments below were conducted by Mrs Hine and Mrs Newton, the solicitors for the two parties, and both sides were represented by counsel before me.

Collins J summarised the central issue before the court:

“17.

…the acquittal or conviction of the offences charged depends essentially upon whether the kiosks…and the manner in which they were being transported can be regarded as falling within s.62 and whether they were to be regarded as equipment of the fair or show at which they were to be used."

Collins J found:

The Deputy District Judge in this case also found that the lorry and trailer were catering equipment that formed part of the equipment of a show within the meaning of the Vehicle and Excise Registration Act 1994, following VOSA v Kayes.

The Deputy District Judge went on to find that the vehicle came within the definition of a showman’s goods vehicle under the Vehicle and Excise Registration Act 1994.

He concluded that,

“…in order to satisfy the alternative requirement under section 62 ‘some other special type of body or superstructure forming part of the equipment of the show’ it is not necessary for such to be identifiable from the outside of the vehicle. In other words, obvious external alteration or construction is not a prerequisite, it is a question of fact and degree in each case whether the alterations and/or additions mean that the vehicle has been permanently fitted with a special type of body or superstructure.… If this vehicle does not satisfy the requirement because of lack of external change in appearance, what would the situation be for example if the Respondent simply removed all sides of the lorry and it had the appearance of a flattop with a large generator permanently fitted? The appearance, and by definition the superstructure would be changed but the fundamental alteration to achieve the purpose of the change (provision of power for the catering trailer by fitting the generator concerned) would be exactly the same.

On the facts of this case, I was of the opinion that the size and permanency of the generator in the lorry concerned and the alterations made to accommodate it were such that it satisfied the exemption requirement”

The Deputy District Judge referred two questions to this court by way of case stated:

“1.

Was I right in deciding that ‘some other special type of body or superstructure’ … does not have to be apparent from the external appearance but can comprise internal alteration?

2.

Was I right in deciding consequently that the vehicle was a ‘specialised vehicle transporting ... funfair equipment’ and thereby exempt from the relevant recording requirements as required by section 97 of the Transport Act 1968?”

It is common ground that:

The point before me therefore is this: was the Deputy District Judge correct to find that because Mr Rowe had fitted a generator to the wall and floor inside the lorry, the vehicle was “permanently fitted with some other special type of body or superstructure forming part of the equipment of the show” (section 62 of the Vehicle Excise and Registration Act 1994) ?

It was common ground that to benefit from the exemption, Mr Rowe’s vehicle must satisfy all the constituent parts of the definition of “a showman’s goods vehicle”. These are:

The DVSA says that the basis for the Deputy District Judge’s conclusion that, “it is not necessary for such to be identifiable from the outside of the vehicle” when determining what is a special type of body or superstructure is not derived from the decision in Kayes. It contends that the Deputy District Judge misdirected himself: in the context of a vehicle, a special type of body by its very nature is determined by its external appearance.

The DVSA argues that the court should apply to the words ‘body’ and ‘superstructure’ their ordinary and natural meaning. It says that the natural and ordinary use of the word “body” describes a shell or framework. An example of a body is the human frame containing organs: heart, liver, spleen kidneys. Another example of the use of “body” when applied to a vehicle is the casing or frame of the vehicle within which is the engine, seats, steering and storage space for equipment fixed or bolted to the body of the vehicle or bolted. To use the word in its ordinary application when a car needs to have ‘body work carried out’ following an accident, that is ordinarily understood to mean work done to the vehicle’s exterior: to the door panels, to the roof, to the bonnet of the engine.

DVSA says that the decision on Kayes is consistent with this approach in that a kiosk is a special kind of body or frame; but a generator fixed internally is not. The DVSA makes no case on the meaning of superstructure or how the words “body” and “superstructure” should be understood to be intended to relate to each other in the context of this provision. It says that to the extent that it is necessary to define “superstructure”, it is a structure built on top of something else, such as the framework of a building, or the frame built above a tanker. It notes that in the stated case the Deputy District Judge appears to elide body with superstructure.

DVSA submits that the Deputy District Judge’s error when deciding whether the Appellant’s lorry was a special body or superstructure was to have construed “body” or “superstructure” by reference to what was within that body or a superstructure and then to go on to find that the fixture of the generator within the body made the body “special”. A generator fitted inside a lorry does not, it says, render the body of the vehicle “special”.

It is accepted by DVSA that it is a question of fact in each case whether the body or superstructure of the vehicle are special (in the sense of being customized). However, it argues that that question must be answered not by reference to what is contained within the body (frame) or superstructure but by reference to the body/superstructure itself. This accords with the conventional wisdom of showground equipment travelling on the public road: rides, displays or shooting galleries being carried on vehicles adapted not only to carry the rides but also the vehicles themselves, once set up at the showground, converting into part of the ride or attraction. Overall DVSA submits that counting an interior generator as within the ambit of the provision flies in the face of the ordinary and natural meaning of the words ‘body’ and ‘superstructure’.

On Mr Rowe’s behalf it is suggested that the distinction between visible and invisible matters is not one which the statutory provision draws – when if that was what was intended this could easily have been done. It is also contended that DVSA’s arguments seek unnaturally to restrict the range of meaning of the words “body” or “superstructure”. Like DVSA, Mr Rowe puts forward no case as to the distinction (if any) which is to be understood between body and superstructure.

Moreover, he says that when one examines it, far from the learned Judge “misapplying” the description to lorry, it appears that DVSA’s submissions wrongly sought to link those words to the lorry (specifically its exterior) and that the Deputy District Judge in fact correctly recognised that the words are attached to the phrase “equipment”, and correctly ruled that nothing in the language of the provision imposes a requirement that the relevant equipment be part of or be visible from the external appearance of the lorry.

Even if the words body/superstructure do attach to the lorry and not to equipment, it is contended for Mr Rowe that there is no obvious reason why the words connote something which has to be visible from the exterior of the vehicle; what if the adaptation involved some customisation of the frame bars, for example? Where there is a substantial physical adaptation to the framework that is an amendment to the body or superstructure, it is said. From here there is a small step to the situation in this case, where a large item, part of the show’s equipment, has been physically fixed to the body of the vehicle.

This case is by no means simple. At first blush it seems the instinctively right answer that a generator for powering a food kiosk does not fall within the statutory provision. However a part of that instinctive reaction derives from a disinclination to view catering equipment as equipment of a show; and that point has been decided in Kayes.

I am not asked to diverge from that decision, and had I been asked to I would, in the light of fuller argument and citation of the broader statutory regime, have been disinclined to do so. As Collins J noted, it is plain that catering stalls now form an intrinsic part of a fair or show. I can see that it would be an oddity if a regime which is not aimed at the low mileage, owner-operator driven showman fraternity caught a significant proportion of a fair’s stalls simply because they offered food, rather than traditional rides.

I will therefore start with the relevant words in the light of the conclusions in Kayes. These refer to a vehicle which

“is permanently fitted with … some other special type of body or superstructure forming part of the equipment of the show.”

It seems fairly apparent that the drafter of this provision had in mind the paradigm fairground example of the lorry which has been fitted with some means of carrying a fairground ride between engagements. However it is also clear that the drafter intended the words to apply outside the paradigm; otherwise more limited words would be used. Further, the drafter refers to “body or superstructure”. While the parties did not concentrate their arguments on this point, it seems to me significant that both words are used.

It might be argued that the word ‘body’ was used to refer to the lower part of the vehicle and superstructure to the upper part. However that approach appears to me to be wrong. As DVSA argued, “body” in the context of vehicles has a commonly understood meaning, which gives rise to derivative words such as “bodyshop” and “bodyworks”. Further one would expect the lower part of the vehicle to be referred to as the chassis. It therefore appears to me that the use of both words is designed to cover a range of matters above the chassis which might not fall within the technical definition of “body”. The use of both words therefore denotes a somewhat inclusive approach.

As for the question of to what do these words apply, I consider that both parties to an extent apply an overly restrictive approach. DVSA at some points focusses on the body or superstructure of the vehicle, without much regard to the linkage to equipment; Mr Rowe by contrast effectively ignores the connection between the body/superstructure and the vehicle. In fact what the provision requires is for the vehicle to be fitted with a special type of body or superstructure – and for that body or superstructure to form part of the equipment of the show. I should add that while DVSA laid emphasis on the fact that in Kayes the body was an entire kiosk, it appeared to be common ground that it was not the statutory intention that the entire body or superstructure had to be special and thus that (subject to the difference of view on external appearance) customisation of an existing body or superstructure would fall within the statutory wording.

Is there, though, anything in the words which import an interior/exterior distinction, such that something which is not visible from the outside cannot fall within the wording of the section? I do not consider that there is anything which compels this conclusion. The point which Mr Sadd makes about bodywork ignores the fact that the body might be materially customised (for example in terms of function) without this being apparent from the outside. I am assisted in coming to this conclusion by two hypotheticals.

The first is to consider a vehicle adapted so as to carry a fairground ride, which was cleverly made to fold up into the outer portions of the body. This would indubitably be a special type of body, and part of the show’s equipment; but it would show no signs of this from the outside. Mr Sadd, for DVSA, very fairly accepted that this hypothetical did present a problem for the line DVSA seeks to draw. Similar, if less extreme, would be a lorry whose roof opened to allow an interior hoist to load and unload a ride which travelled within.

The second is to consider a twist on the situation posited by the Deputy District Judge; suppose that a large generator for a ride was “wrapped” in a box resembling a lorry body. This would surely be a special body forming part of the equipment of the show and yet would not be discernible from outside.

It also seems to me that the interior/exterior distinction is an odd and possibly capricious one by reference both to the purpose of the legislation and to the facts of this case. Why should a regime which is about holding a line between safety and practical fairness to operators who do not really form part of the haulage market turn on the external appearance of the vehicle? Furthermore this case itself illustrates that such a distinction could lead to cases turning on absurd details. From above Mr Rowe’s lorry an observer could certainly see the hole in the roof and the exhaust outflow which was a part of the modification. An observer could probably not see it from the ground (though this may have depended on angle and distance), but would be likely to be able to see it from a position standing on a box or a nearby stile. Would this make the modification visible or invisible? The point was not taken before the Deputy District Judge or before me, but would inevitably arise if the line were drawn according to this distinction.

In a sense, therefore, this answers the question which the Deputy District Judge posed: I consider that he was right in deciding that the special type of body or superstructure does not have to be apparent from the external appearance but can comprise interior alterations to the body or superstructure.

However given the fact that DVSA are actively seeking guidance in this case it seems appropriate if I continue the reasoning further. I have come to the view that the Deputy District Judge was essentially correct in his reasoning.

A distinction which would cohere more closely with the wording would be to say that the entire body/superstructure needs to be special and that customisation of an existing body/superstructure, however radical, would not suffice. However this would seem an artificial and impractical line to draw; and one which does not fit with the expansive nature of the “body or superstructure” wording. It is this sort of distinction which is highlighted by the Deputy District Judge’s question in the case stated: if a generator on a flatbed is a special body or superstructure why is the same generator fixed within and to the lorry body not?

Once one has accepted

One might say that this leads also to absurd results in that the same or larger generator would not have this effect if not installed permanently. However when one bears in mind the rationale of the exemption (to exempt vehicles which will not play a part in the real haulage market) this becomes logical, because an uncustomised lorry from which a generator can simply be removed can play a part in such a market. I would note that I consider that Mr Kayes’ position, where the conclusion on permanence seems to rest on the acceptance of his assurance that he never would use an otherwise perfectly useable flatbed except for transporting the kiosks, may be regarded as somewhat marginal. It is plain however that he impressed both the Deputy District Judge and Collins J as a highly credible witness.

I am supported in the conclusions which I have reached by the materials from Bennion. I do not regard this provision as falling within the ambit of “Section” 195; there is clearly room for considerable argument about what is meant. That being the case it seems to me that an approach which leads to penalising Mr Rowe for this offence is one which either runs contrary to “Section” 265, in the light of what appears to be the purpose of the statutory regime and the exemptions to it, or runs contrary to “Rule” 271 in that the intention to penalise in these circumstances is doubtful.

The Deputy District Judge approached the second issue (whether the exemption relating to tachograph use applying to “specialised vehicles transporting …. funfair equipment” in Article 13 of EC Regulation 561/2006 applied) as being in effect determined by the first question. In so doing he closely following the approach adopted to that issue in Kayes.

It is fair to say that in the light of the formulation of the question the possibilities inherent in this issue only came to the fore very late in the day – essentially at the hearing, where time was limited. I did not therefore have the benefit of as full argument on this point as I did on the first issue.

DVSA submitted before me that the Deputy District Judge erred. Unlike Kayes the decision did not follow on the facts (Mr Kayes was part of a funfair, Mr Rowe is not and it is said attends primarily carnivals and festivals) or on the law. As to the latter, Mr Sadd referred me to Universal Salvage v Boothby [1984] RTR 289 at 305G as authority for the proposition that this EU Regulation is not in pari materia with the UK statute, bearing in mind their diverse origins and therefore requires to be read on its own terms.

Mr Nesbitt for Mr Rowe suggested that once it is determined that the exemption relating to “showman’s goods vehicle” applied, it was logical and correct for the Judge to find as he did on the second issue.

He says that the Boothby case, which concerned specialist breakdown vehicles, with the focus on the breakdown adaptations, is obviously distinguishable and contends that the context requires there to be equal exemptions under the two provisions.

He also submits that since the words “vehicle transporting ... funfair equipment” do not contain the words “body or superstructure” even if the Court were against Mr Rowe on the first issue, on the basis of the analysis of the word “equipment” in Kayes (that equipment of a fair or show can include catering equipment) the exemption in Article 13 of EC Regulation 561/2006 would still be engaged as Mr Rowe’s vehicle was a special vehicle transporting (catering) equipment for funfairs (or equipment which was capable of being used for funfairs).

On this it seems to me that the answer to the question I am asked is that the Deputy District Judge was not right to say that the second exemption followed from the first. The wording of the two different provisions is different, and the Regulation in question here has a different statutory origin to the regime for operators' licences.

I do not consider that I have the factual findings or all the legal materials which would be desirable to come to a conclusion on this issue. I will however make the following points which may assist DVSA and interested parties such as the Showmen’s Guild:

There are other factors which might have an impact. For example:

Had it been necessary for me to reach a conclusion on this matter on the basis of the limited material before me I would (albeit with hesitation, considering the lack of further materials) have concluded that the exemption did cover Mr Rowe. This is predominantly on the basis that I am just persuaded that the plain meaning rule does not apply given the wider context, and that the principle against doubtful penalisation then indicates that a wider view of the wording should be taken.

However I hope that it will be possible for DVSA and relevant parties to consult further in the light of the points I have alluded to above and for guidance to be given as to the approach which DVSA will take on this issue going forward.