Vehicle and Operator Services Agency v F & S Gibbs Transport Services Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE,MR JUSTICE JACK |
| Judgment Date | 08 May 2006 |
| Neutral Citation | [2006] EWHC 1109 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 May 2006 |
| Docket Number | CO/3072/2006 |
[2006] EWHC 1109 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Keene
Mr Justice Jack
CO/3072/2006
MR TIMOTHY NESBITT (instructed by Messrs Barry Culshaw Solicitors, Warsash SO31 9AD) appeared on behalf of the Appellant
MR MARK SULLIVAN (instructed by Messrs Moore & Blatch, Southampton SO15 2AH) appeared on behalf of the Respondent
This case raises a short but not unimportant point of law about the meaning of section 41B(2) of the Road Traffic Act 1988, which, putting it shortly, provides a defence to a charge of using on a road a goods vehicle which is overweight.
The offence itself is created by section 41B(1). By that provision it is an offence, amongst other things, to use on a road a goods vehicle which does not comply with a requirement as to weight of the Construction and Use Regulations 1986. Section 41B(2) then provides that in any proceedings for such an offence:
"… it shall be a defence to prove …
(a) that at the time when the vehicle was being used on the road —
(i) it was proceeding to a weighbridge which was the nearest available one to the place where the loading of the vehicle was completed for the purpose of being weighed …"
The issue in short is whether the phrase "nearest available one" means the nearest weighbridge known to the driver of the vehicle or the nearest one as a matter of objective fact, whether or not the driver knew of it.
The appeal comes by way of a case stated by the East Wiltshire Justices sitting at Salisbury. They found that on 1st December 2004 a Mr Waters, employed by the respondent company, was driving on that company's behalf a three axle vehicle and trailer unit on the A303 road at Wylye in Wiltshire. He was stopped by an employee of the appellant, which is an agency for the Department of Transport, and was directed to a weighbridge nearby. The trailer was there found to be nearly 4,000 kilograms overweight, an overload of 17.3%. The case goes on to state:
"The vehicle was carrying grain which had been loaded at a farm in Mere, Wiltshire and Mr Waters was driving it to Southampton docks. The vehicle and trailer unit had not been weighed when it was loaded; there was no weighing facility at that farm. Mr Waters had visited the farm on previous occasions but it is not part of the regular routine of the respondent's business."
The justices accepted that Mr Waters intended to travel some 22 miles to the premises of Wiltshire Grain at Shrewton in Wiltshire, where he intended to check the weight and to make any necessary adjustments. The Bench also found that there was a nearer weighbridge to Mere, the place where the vehicle had been loaded. This was at Keysley Farm, about five or six miles from Mere, and it was signposted on the carriageway of the A303. It was situated up a metalled road from the A303, had been available for at least 18 months and was well known to the local police. The facts as found also included the following:
"Mr Waters and the respondent company have used the Wiltshire Grain facility for a number of years. Mr Waters did not know about the weighbridge at Keysley Farm, he accepted that he might have seen the sign to Keysley Farm but he did not notice the indication that there was a weighbridge available at that farm. … The respondents were not aware of the Keysley Farm facility. The Respondent company did not provide Mr Waters with a list of weighbridges at which to check weight and Mr Waters did not ask anybody at the place where he loaded as to where the nearest weighbridge was situated."
After hearing argument and having been referred to a number of authorities, the justices concluded at paragraph 6 of the case as follows:
"We were of the opinion that
1) The facts found by us would be sufficient to prove the case against the respondents unless they could prove on the balance of probabilities that the driver was proceeding to the nearest weighbridge for the purpose of weighing the vehicle and trailer.
2) The terms of the statutory defence in section 41B(2) of the Road Traffic Act 1988 only require the vehicle to be proceeding to the nearest weighbridge known to the driver."
Consequently they dismissed the information.
The question posed for this court is, in essence, whether they were right to conclude that the words "nearest available" weighbridge mean the nearest available weighbridge of which the driver is aware, or simply the nearest actually available weighbridge regardless of his knowledge.
The appellant submits that the subsection is referring to the nearest actually available weighbridge, no more no less. On behalf of the appellant Mr Nesbitt submits that if Parliament had intended to mean the nearest one known to the driver, the subsection would have said so. It is argued that the justices' decision in effect adds words to the statute that are not there.
Moreover, reliance is placed on the purpose behind the legislation about overloaded goods vehicles. Mr Nesbitt draws our attention to the decision of this court in Lovett v Payne [1980] RTR 103, a decision on the predecessor of the current provision, namely section 40(6)(a) of the Road Traffic Act 1972, which was in identical terms. There the issue was whether "nearest available" meant as the crow flies or measured by road as a vehicle could travel. The court held that it meant the latter, it being said by Eveleigh LJ that it was "the nearest place which the lorry can go to [to] be weighed" (page 109D).
In the course of his judgment, Eveleigh LJ also said this, upon which Mr Nesbitt relies:
"The purpose of the Road Traffic Act 1972 and the regulations made thereunder with which we are concerned is quite clear. It is to ensure that a vehicle is not driven on the road in an unsafe condition. It follows that, if the Act is to exclude the presence or use on the road of a vehicle which is unsafe or potentially unsafe, the legislature will be concerned to ensure that that use is for the shortest possible distance and it is with that object of the Act in mind that one reads this regulation." (page 109A-B)
It is submitted that the weight limits exist for the protection of the public. That protection, however, would be greatly diminished if the justices' approach were to be adopted. A driver could almost always say that he was on his way to the nearest available weighbridge which he knew about, and demonstrating in court that he was wrong about that and was not telling the truth would never be easy. Convictions for overloading offences would become very difficult to secure, and the protection which the Act seeks to provide the public with, and indeed the protection of the road system, would be substantially undermined. Indeed it is argued that the justices' interpretation would encourage hauliers not to know about the nearest weighbridge, or to make enquiries about the nearest available weighbridge. The burden, argues Mr Nesbitt, should be on hauliers to inform themselves and their drivers as to the location of the nearest weighbridge if they wish to available themselves of this statutory defence.
For the respondent Mr Sullivan emphasises the word "available" in the statutory phrase. Consequently, it is not just a question of simple proximity of a weighbridge to the loading point. The weighbridge, for example, may not even be open at the relevant time. In this connection Mr Sullivan, like his opponent, relies on the decision in Lovett v Payne. He refers to the judgment therein of Woolf J (as he then was), who suggested that the test should be applied "in a practicable and sensible sense". Thus, said Woolf J, if a weighbridge was only the nearest via a road which was not suitable or practicable for the lorry, then it would not be the nearest (see page 110). That...
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