Bolle Materieel BV T 28 2016
| Jurisdiction | UK Non-devolved |
| Judge | Her Honour Judge Beech |
| Judgment Date | 05 September 2016 |
| Neutral Citation | 2016 UKUT 398 AAC |
| Subject Matter | Transport – Traffic Commissioner and DoE (NI) Appeals entries from Jan 2016 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | T 28 2016 |
| Appellant | Bolle Materieel BV |
IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS
ON APPEAL from the DECISION of
Kevin Rooney, Traffic Commissioner
for the North East of England dated 19 May 2016
Before:
Her Honour Judge J Beech, Judge of the Upper Tribunal
Leslie Milliken, Member of the Upper Tribunal
John Robinson, Member of the Upper Tribunal
Appellant:
Bolle Materieel BV
Appellant
and
Driver and Vehicle Standards Agency
Respondent
Attendances:
For the Appellant Simon Clarke of Counsel, instructed by Tinkler Solicitors
For the Respondent Tim Nesbitt of Counsel instructed by the Driving and Vehicle Standards Agency.
Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ
Date of hearing: 23 August 2016
Date of decision: 5 September 2016
DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be DISMISSED
SUBJECT MATTER: Impounding; whether the vehicle was undertaking international carriage; whether a discretion should be read into the Goods Vehicles (Enforcement Powers) Regulations 2001
CASES REFERRED TO: T/2011/60 Nolan Transport v Vehicle & Operator Services Agency & Secretary of State for Transport (2012 UKUT 221 (AAC); The Commissioners of Customs and Excise v Newbury (2003) 1 WLR 2131; T/2011/25 Asset 2 Asset Limited (2011 UKUT 290 (AAC); Commissioners of Customs v Ian Newbury (2003) EWHC 702 (Admin).
REASONS FOR DECISION
- Introduction
This is an appeal against the decision of the Traffic Commissioner for the North East of England (“the TC”) made on 19 May 2016 when he refused to order the return of a vehicle to Bolle Materieel BV (“BM”) which had been detained under reg.3 of the Goods Vehicles (Enforcement Powers) Regulations 2001 (as amended) (“the 2001 Regulations”).
- Unless permitted to do so under an exemption, it is unlawful in the United Kingdom (“UK”) to use a goods vehicle on a road, for the carriage of goods, either for hire or reward or for or in connection with any trade or business carried on by the user of the vehicle, without holding an operator’s licence issued under s.2 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”). Use of a goods vehicle in contravention of s.2 of the 1995 Act is a criminal offence punishable by a fine not exceeding £5,000
- One of the exemptions referred to in paragraph 2 above, is the use of a vehicle for international carriage by a haulier established in another Member State (see s.2(2)(b) of the 1995 Act). International carriage is defined by Council Regulation (EC) No. 1072/2009 (“the 2009 Regulation”) as being “a laden journey undertaken by a vehicle the point of departure and the point of arrival of which are in two different Member States, with or without transit through one or more Member States or non-member countries”. It follows that the use of a vehicle from another Member State with the appropriate authorisation to bring an incoming international load into the UK will not be operating unlawfully. We have underlined “laden” in the above passage as in the Tribunal’s lead case on this issue T/2011/60 Nolan Transport v Vehicle & Operator Services Agency & Secretary of State for Transport (2012 UKUT 221 (AAC) (“Nolan”), “laden” was omitted from the definition in paragraph 14 of that decision as the Tribunal had erroneously quoted from a previous Regulation which has since been superseded by the 2009 Regulation. By virtue of Article 2 of the 2009 Regulation, “vehicle” means “a motor vehicle registered in a Member State, or a coupled combination of vehicles the motor vehicle of which at least is registered in a Member State, used exclusively for the carriage of goods”.
- By virtue of the 2009 Regulation, any haulier for hire or reward from another Member State whose vehicle has entered the UK whilst delivering an incoming international load and who then complies with the conditions set out in Article 8 of the 2009 Regulation, may also take advantage of a further exemption which is known as “cabotage”. Article 8(2) provides
“Once the goods carried in the course of an incoming international carriage have been delivered hauliers referred to in paragraph 1 shall be permitted to carry out, with the same vehicle, or in the case of a coupled combination, the motor vehicle of that same vehicle, up to three cabotage operations following the international carriage from another Member State ..”
This clearly permits an incoming vehicle, after the last unloading of its international carriage, to undertake three further collections and deliveries, known as “cabotage operations” within the UK before the vehicle leaves the country. The three cabotage operations must take place within seven days from the last unloading of the incoming international carriage (if there is more than one). This is known as the “three in seven rule”.
- Cabotage operations will only be deemed to conform to the 2009 Regulation if the haulier can produce clear evidence of the incoming international carriage and of each consecutive cabotage operation carried out. Article 8(3) sets out the precise nature of the documentation required to be produced by the driver. Such evidence must be kept in the vehicle and must be available for inspection at any roadside check (see paragraph 53 of the Nolan decision).
- It follows that once a vehicle undertaking international carriage has unloaded the incoming load, then unless the vehicle can be shown to be operating in accordance with the “three in seven” cabotage rule and is carrying all of the necessary evidence set out in Article 8(3) of the 2009 Regulation, the vehicle will be operating in contravention of section 2 of the 1995 Act.
- The Nolan case is the lead authority on the issues of international carriage and the cabotage and impounding regimes. Its status is enhanced by the constitution of the Tribunal which was made up of two judicial members and a single specialist member to reflect the legal importance of the issues it was required to determine. As was recognised in the Nolan case (paragraph 233) that this Tribunal is not strictly bound by its earlier decisions, it is recognised that on rare occasions, where there are compelling reasons for doing so, it can depart from previously settled principles.
- Background circumstances to the impounding
Bolle Transport BV is a Dutch registered transport company with a Dutch operator’s licence and a European authorisation permitting Bolle Transport to engage in the international carriage of goods. The company is part of a group controlled by Cees Bolle, the majority shareholder of the holding company, Bolle Holding BV. BM is the entity within the group which owns the tractor units and trailers operated by Bolle Transport.
- In the period 13 December 2011 to 24 July 2015, vehicles which were being operated by Bolle Transport were stopped by VOSA or its successor, the Driver and Vehicle Standards Agency (“DVSA”) on seventeen occasions and found to have been operating otherwise than in the course of international carriage or within the strict confines of the cabotage regime. On each occasion, prohibition notices were issued to Bolle Transport and the vehicles were directed out of the country. In addition, fixed penalty notices were issued to Bolle Transport on ten occasions arising out of prohibitions issued; two were later withdrawn upon Bolle Transport producing the documentation that should have been carried by the drivers under Article 8(3) of the 2009 Regulation. The prohibition notices in those two instances were nevertheless validly issued. This was confirmed to “John” of Bolle Transport in an email sent by Mark Horton, Traffic Enforcement Policy and Scheme Manager on 15 January 2015, in response to “John’s” enquiry.
- On 20 March 2014, Bolle Transport was sent a letter by the DVSA Operational Support Team explaining that as the company’s vehicles had been repeatedly found to be in breach of the cabotage regime, that as at 3 April 2014 any further vehicles found to be operating in contravention of s.2 of 1995 Act would be detained indefinitely. As a consequence of this enforcement history, Bolle Transport was one of the operators on the DVSA “watch list” of repeat offenders against the cabotage regime. In addition, Traffic Examiner (“TE”) Berriman had spoken to Mr...
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