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Regulated businesses

Transport of goods by road

Contents:

Introduction

Great Britain

  Common carrier status

   Operator licensing

   Abnormal loads

   Dangerous goods

Northern Ireland

 Road freight operator licensing

 Dangerous goods

Clandestine Entrants

HGV road user levy

 

Introduction

At the EU level, Regulation (EC) No. 1071/2009 of 21 October 2009 establishes common rules for the European Union concerning the conditions to be complied with to pursue the occupation of road transport operator and repeals Council Directive 96/26/EC. The EU Regulationcame into force with direct effect on 4 December 2011. Regulation 1071/2009 repealed Council Directive 96/26/EC.

Regulation 1071/2009 governs admission to, and pursuit of, the occupation of road transport operator. It requires road transport undertakings to have an effective and stable establishment in member states, be of good repute and have appropriate financial standing and the requisite professional competence; and it specifies conditions to be met to satisfy these requirements.

The Regulation provides for the enforcement of its provisions by requiring EU member states to designate one or more competent authorities to ensure its correct application, requiring undertakings to hold authorisations to engage in the occupation of road transport operator, and establishing the procedure for withdrawing authorisations and declaring transport managers unfit to manage transport activities. It also provides for appeals against adverse decisions, the establishment of national electronic registers of authorised undertakings, the protection of personal data, administrative cooperation between member states, the mutual recognition of certificates and member states to establish penalties for infringements.

The UK has implemented the EU Regulation in Great Britain by means of the Road Transport Operator Regulations 2011 which amended the Goods Vehicles (Licensing of Operators) Act 1995. In Northern Ireland, the legislation is in the competence of the Northern Ireland Assembly which enacted the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010).

In England and Wales, and possibly in Northern Ireland and Scotland, the common law developed the concept of a ‘common carrier’ in relation to goods and passengers. Although largely superseded by statute and EU law, the common law principles may still have some residual relevance.

Great Britain

Common carrier status

At common law a ‘common carrier’ is a person who exercises the public profession of carrying the goods of all persons wishing to use his services or of carrying passengers whoever they may be. His rights and liabilities are determined by the common law for reasons of public policy and stem from his status as a common carrier rather than from contract, express or implied. However, these rights and liabilities may be varied by contract. A common carrier’s position is analogous to that of an innkeeper at common law.

Although their duties and liabilities are different, there appears to be no substantial distinction between the factors which identify a common carrier of goods and those which identify a common carrier of persons.

The test as to whether a carrier of goods is a common carrier is objective. It does not depend on whether the carrier personally intends to hold himself out as being prepared to carry irrespective of circumstances. To constitute himself a common carrier of goods, a carrier must hold himself out, either expressly or by a course of conduct, as willing to carry for reward, so long as he has room, goods of all persons indifferently who send him goods to be carried at a reasonable price. He must hold himself out as ready to carry for hire as a business and not as a casual occupation for a particular occasion. A carrier's advertising literature may be material in establishing his willingness to carry goods for all those who may call upon his services. The same criteria apply for a common carrier of passengers, namely the carrier must hold himself out as ready to carry all persons indifferently who wish to be carried at the proper fare. If a carrier reserves to himself the right to reject persons or goods whom he is asked to carry according to his usual course of business, or if he carries only certain passengers or goods for certain customers, he is not a common carrier.

The status of a common carrier, who is under an obligation to carry unless he can show reasonable excuse, and (if a carrier of goods) is an insurer of the safety of the goods carried, has become almost obsolete because it will be only in rare cases that a carrier will hold himself out as ready to carry goods generally.

Some of the case law is very old. See e.g.:


* Coggs v Bernard (1703) 2 Ld Raym 909; common carrier ‘charged with the safety of goods entrusted to him in all events but acts of God or the Queen's enemies’;


* Forward v Pittard (1785) 1 Term Rep 27: purpose of status is aw presumes against him 'to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled'.]

The common law principles relating to common carriers are however not completely obsolete: See:


* A Siohn & Co Ltd and Academy Garments (Wigan) Ltd v RH Hagland & Son (Transport) Ltd [1976] 2 Lloyd's Rep 428;


* Eastman Chemical International AG v NMT Trading Ltd [1972] 2 Lloyd's Rep 25 (sub-carrier); it appears that a person may owe the responsibilities of a common carrier towards a particular consignor or consignee notwithstanding the fact that he does not have a contract with that consignor or consignee).

Goods Vehicles Operators licensing system

Legislation

The Goods Vehicles (Licensing of Operators) Act 1995 as amended by the Road Transport Operator Regulations 2011 (2011 No. 2632) (the 2011 Regulations) give effect in Great Britain to the EU legislation on this topic i.e. Regulation (EC) No. 1071/2009 of 21 October 2009.

The Goods Vehicles (Licensing of Operators) Regulations 1995, SI 1995/2869 contain the detailed regulations on the licensing system.

The Goods Vehicles (Community Licences) Regulations 2011 give effect to aspects of Regulation (EC) No 1072/2009 of 21 October 2009 (“Regulation 1072/2009”), which makes provision for a Community licence allowing goods vehicles access to the market in the carriage of goods by road between Member States and for a driver attestation where the driver is a third country national. The regulations came into force on 4 December 2011.

The following is a summary of the regulations

Further information

Further detailed information is available from the Driver and Vehicle Standards Agency (DVSA) site.

The Transport's Friend site is a free information portal promoting Road Safety and Operator Compliance.

Scope of the Road Freight Vehicle Operator licensing system

A ‘user’ of a goods vehicle must have a Road Freight Vehicle Operator’s (RFVO) licence if it is being used on a road for the carriage of goods for hire or reward, or in connection with any trade or business carried on by him, if the vehicle has a gross plated weight (the maximum weight that the vehicle can have at any one time) of over 3,500 kilograms (kg) or (where there is no plated weight) an unladen weight of more than 1,525 kg.

Therefore an RFVO licence is required even if the goods are owned by the user and not being carried for a third party.

User: the ‘user’ who must hold the RFVO licence is the driver of a vehicle, if it belongs to him or is in his possession under an agreement for hire, hire-purchase or loan. Otherwise the user is the employer of the driver.

Employer: ‘Employ’ in this case includes contracted drivers who are under the control of the employer; see:

Interlink Express Parcels Ltd v Night Trunkers Ltd [2001] EWCA Civ 360: under an agreement with the claimant the defendant supplied drivers to drive the claimant's vehicles but as the defendant allocated the drivers to particular routes and remained responsible for their wages, holiday entitlement and discipline, correctly applying the test of control to the facts of the case, the drivers were temporary deemed employees of the claimant, so that the defendant did not need to hold the relevant operator's licence.

Hire or reward: a vehicle is being used for the carriage of goods for hire or reward where the carriage is for a consideration, whether direct or indirect, which benefits the owner or user of the vehicle: Wurzel v Houghton Main Home Delivery Service Ltd [1937] 1 KB 380, [1936] 3 All ER 311, DC; Siddle C Cook Ltd v Service Engines (Newcastle) Ltd (1962) 112 LJo 306, Transport Tribunal.

Trade or business: a vehicle is being used for or in connection with the user's trade or business when it is carrying any goods, tools or equipment for that purpose: Clarke v Cherry [1953] 1 All ER 267, [1953] 1 WLR 268, DC; Hammond v Hall and Ham River Ltd [1965] AC 1049, [1965] 2 All ER 811, HL. As to the meaning of 'trade or business' see Stirk v McKenna [1984] RTR 330, DC.

Types of licence

There are 3 different types of licence:

Standard licence (national only): this licence means permits the holder to carry his own and other people’s goods in Great Britain.

Standard licence (national and international): this licence permits the holder to carry his own goods, and other people’s goods, both in Great Britain and on international journeys. The holder of a standard international licence may also request the issue of Community Licences which authorise:

* trips between all EU member countries;
* transit traffic through EU member countries;
* ‘cabotage’ i.e. journeys entirely within another EU member country up to a maximum of three cabotage jobs in seven days within the host member state.

Restricted licence: this licence permits the holder to carry his own goods, but not other people’s goods.

Period of licence: the licence will continue to be valid for five years subject to payment of the required fees and compliance with the terms of the licence.

Operating centre: an applicant for an RFVO licence must own or have use of a suitable operating centre.

Maintenance of vehicles: the licence holder must ensure that he or a competent contractor maintains the licensed vehicles in a safe and good condition at all times. Records of all safety inspections and maintenance must be kept for a minimum of fifteen months. The holder must also ensure that drivers carry out a ‘walkaround check’ before driving a vehicle for the first time each day.

Employment of drivers: an RFVO licence holder must ensure that employed or contracted drivers have the correct licence and training to drive goods vehicles. Professional lorry drivers need to hold a Driver Certificate of Professional Competence (Driver CPC).

Drivers’ hours

A driver of a goods vehicle over 3.5 tonnes* must comply with certain rules on the amount of hours he may drive and the breaks that he must take. The rules differ for EU and international trips and UK domestic trips.

* and a vehicle adapted to carry more than nine persons including the driver, subject to certain exceptions

For detailed information, see Drivers' hours

EU and certain other European and Asian (‘AETR’ countries)


* 9 hours in a day which may be extended to 10 hours twice a week;
* 56 hours in a week; 90 hours in any 2 consecutive weeks;
* plus mandatory breaks;

* tachograph: all driving must be recorded on a tachograph..

UK rules


In Great Britain drivers’ hours rules apply to most passenger-carrying vehicles and goods vehicles that are not subject to the EU rules. Separate rules apply in Northern Ireland.


* Daily driving limit: drivers not drive for more than 10 hours in a day. The daily driving limit applies to time spent at the wheel actually driving on a public road. Off-road driving counts as duty time.
* Duty time: for an employed driver, duty time is any working time; for a self-employed driver, duty time is only time spent driving the vehicle or doing other work related to the vehicle or its load.
* Daily duty limit: drivers must not be on duty for more than 11 hours in any working day. This limit is not applicable to any working day when the driver does not drive.
* Record: hours must be recorded on a weekly record sheet or on a tachograph.

Application for RFVO licence

The Driving Standards Agency (DSA) and Vehicle and Operator Services Agency (VOSA) merged to form the Driver and Vehicle Standards Agency (DVSA). The DVSA administers the licensing scheme on behalf of the independent Traffic Commissioners.

There are eight traffic areas in Great Britain with a Traffic Commissioner responsible for each area. A goods vehicle operator’s licence must be held for each traffic area where the operator has an operating centre.

Applications for an RFVO licence must be made at least nine weeks before the operator desires to start operating. The application process requires:

* advertisement of the application;

* advertisement of the proposed operating centre(s);

* designation of a suitable a transport manager (for a standard licence);

* evidence of sufficient financial resources;

* evidence of an adequate maintenance contract if safety inspections and repair vehicles are not to be carried out in-house;

* the application fee

Interim licences: an operator may apply for an interim licence provided a complete application for an operator’s licence has been submitted.

Tacit consent: tacit consent will not apply as the legislation contains specific rules about the timing and processing of applications.

Appeals: there is a right of appeal to the Upper Tribunal against a decision of a Traffic Commissioner not to grant a licence, to impose certain conditions, or to vary, suspend or revoke a licence. Tribunal decisions may be searched and viewed on the Tribunals Judiciary website (search for appeals from the Traffic Commissioners).

Enforcement:

Civil enforcement: as noted above, an RFVO must hold a licence and licences may be granted, suspended, curtailed or revoked by the Traffic Commissioners.

Criminal enforcement:  a person who uses a vehicle in contravention of this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Abnormal loads

An ‘abnormal load’ is a vehicle that has any of the following:

* a weight of more than 44,000 kg;

* an axle load of more than 10,000 kg for a single non-driving axle and 11,500 kg for a single driving axle;

* a width of more than 2.9 metres;

* a length of more than 18.65 metres

The rules are contained in the Road Traffic Act 1988 s.44 and the Road Vehicles (Authorisation of Special Types) (General) Order 2003 SI 2003 No. 1998

The transport of an abnormal load must be pre-notified to the authorities including the police, highway authorities and bridge and structure owners. The Highways Agency offers the ESDAL electronic system for pre-notifying the transport of AILs -

Dangerous goods

There are regulations which deal with the carriage of dangerous goods, the purpose of which is to protect everyone either directly involved (such as consignors or carriers), or who might become involved (such as members of the emergency services and public). Regulations place duties upon everyone involved in the carriage of dangerous goods, to ensure that they know what they have to do to minimise the risk of incidents and guarantee an effective response.

Carriage of dangerous goods by road or rail is regulated internationally by agreements and European Directives. The Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009 implement in Great Britain the European Agreement concerning the International Carriage of Dangerous Goods by Road.

VCA Dangerous Goods Office: the VCA Dangerous Goods Office is the UK authority for the certification of packaging and intermediate bulk containers used for the transport of dangerous goods, in accordance with national and international regulations.

Health and Safety Executive : the HSE publishes guidance about the carriage of dangerous goods.

Carriage of goods by air: a shipper is required before consigning any dangerous goods for carriage by air the shipper to ensure that the goods are not forbidden for carriage by air in any circumstances or only with prior approval, the goods are fit condition for carriage by air and accompanied by the prescribed documents. The goods must also be classified, packed and labelled according to the Technical Instructions for the Safe Transport of Dangerous Goods by Air, approved and published by decision of the Council of the International Civil Aviation Organisation.


[Air Navigation (Dangerous Goods) Regulations 2002 (SI 2002 No 2786).

What’s new item [see What’s new page or archive for full item]:

20/08/2012: Fine for carrying dangerous goods on aircraft
A West London packaging company has been fined GBP 25,000 and GBP 6,630 costs at Isleworth Crown Court for attempting to transport improperly packed dangerous goods on a cargo flight from Heathrow airport in August 2011. Angel Case and Packing Company Limited pleaded guilty to the offence at an earlier hearing, following a prosecution by the UK Civil Aviation Authority (CAA).

Enforcement

Civil enforcement

Prohibition Notices in respect of dangerous vehicles or loads may be issued under issued under the Health and Safety at Work etc Act 1974 s.22 by the Police or enforcement authority such as the DVSA or Department for Transport'. The HSE website has a database of prohibition notices generally and a specific database of carriage of dangerous goods notices.

Unenforceable contract: an unlicensed carrier of goods may be prevented from recovering payment from his customer as the contract would be unlawful.

Criminal enforcement: the transport of dangerous goods otherwise than in accordance with the regulations may amount to a criminal offence under Health and Safety at Work legislation.

Northern Ireland

Legislation

The EU legislation regarding the transport of goods by road is implemented by the Northern Ireland Assembly Goods Vehicle Act (full title Goods Vehicles (Licensing of

Operators) Act (Northern Ireland) 2010).

Goods Vehicles Operators licensing system

In NI the Goods Vehicles Operators licensing system is administered by the Department of the Environment's Transport Regulation Unit (TRU) which was formed to exercise the functions of the Goods Vehicle Licensing of Operators Act (Northern Ireland) 2010.

Guidance on how to apply for a Road Freight Operator's Licence and a description of how the licensing system works may be found in the Northern Ireland Department of the Environment site.

Carriage of dangerous goods

The NI legislation regulating the carriage of dangerous goods is contained in the Carriage of Dangerous Goods & Use of Transportable Pressure Equipment Regulations (Northern Ireland) 2010.

Further information is available from the HSENI site.

 

Carrying clandestine entrants

Summary

A vehicle driver, and its operator, who carries a ‘clandestine entrant’ into the United Kingdom may be required to pay a civil penalty of up to £2,000 for each clandestine entrant found in the vehicle. An employer is liable to pay a penalty imposed on its driver as well as the driver himself. The maximum aggregate penalties which may be imposed in respect of one clandestine entrant is £4,000.

The vehicle may also be detained if there are outstanding penalties or the UK Border Force is concerned that the fine will not be paid on time.

Comment: a penalty of may be imposed regardless of whether the driver or other responsible person knew or should have known of the presence of the clandestine entrant. There are defences to the imposition of a penalty (see Enforcement below) but it is up to the responsible person to establish the defence which will normally require him to show that he complied with the strict requirements of the Civil penalty prevention of clandestine entrants: code of practice.

Official guidance

Official guidance is available on how to secure vehicles and follow procedures to avoid a penalty.

Introduction

The increasing scale of illegal entry into the UK in particular by clandestine entry increased dramatically in the 1990s. To counter this trend, the government initiated the enactment of the Immigration and Asylum Act 1999 Part II. A new penalty regime created to deter those intentionally or negligently allowing clandestine entrants into the UK [source: International Transport Roth GmbH & Ors v Secretary of State For the Home Department [2002] EWCA Civ 158 (22nd February, 2002)]

Due to criticism from the haulage industry and judicially in the Roth case, the penalty scheme was amended by the Nationality, Immigration and Asylum Act 2002 in order to change the £2,000 penalty from a fixed sum to a maximum and to introduce other flexibility.

Carrying a clandestine entrant

Any person ‘responsible’ for carrying a ‘clandestine entrant’ into the United Kingdoms may be required to pay a civil penalty of up to £2,000 for each clandestine entrant found in the vehicle. The vehicle may also be detained if there are outstanding penalties or the UK Border Force (UKBF) is concerned that the fine will not be paid on time.

A ‘responsible person’ in the case of a vehicle includes the driver and the owner or hirer of the vehicle. In the case of s a detached trailer, the responsible person is the owner, hirer or operator of the trailer. An employer is jointly and severally liable for any penalty imposed upon its driver. Furthermore, a person who is responsible in more than one capacity may receive a penalty in respect of each capacity. Thus a driver of a vehicle who is also the owner or hirer may receive an additional penalty in respect of each clandestine entrant.

A penalty may be imposed regardless of whether the responsible person knew or suspected that the clandestine entrant was concealed in the vehicle; or that there were one or more other persons concealed with the clandestine entrant in the same vehicle. However, a defence is available if he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter and at the time he was properly operating an effective system for preventing the carriage of clandestine entrants in the vehicle (see Enforcement below).

Clandestine entrant

A ‘clandestine entrant’ is defined as a person who:

* arrives in the United Kingdom concealed in a vehicle, ship or aircraft;

* arrives in the United Kingdom concealed in a rail freight wagon;

* passes, or attempts to pass, through immigration control concealed in a vehicle; or

* arrives in the United Kingdom on a ship or aircraft, having embarked concealed in a vehicle and at a time when the ship or aircraft was outside the United Kingdom, and claims, or indicates that he intends to seek, asylum in the United Kingdom or evades, or attempts to evade, immigration control.

[Immigration and Asylum Act 1999 Part II]

Enforcement

Civil enforcement

A civil penalty of up to £2,000 may be imposed on both the driver and the owner or hirer (‘responsible person’) in respect of each clandestine entrant. An employer is liable to pay a penalty imposed on its driver as well as the driver himself. The maximum aggregate penalties which may be imposed in respect of one clandestine entrant is £4,000.

[Immigration and Asylum Act 1999 Part II and The Carriers' Liability Regulations 2002 SI 2002 No. 2817]

Any penalty must take into account the current Code of Practice published by the Home Office/UK Border Agency [The Carriers' Liability (Clandestine Entrants) (Level of Penalty: Revised Code of Practice) Order 2004 SI 2004 No. 251]

Defences

A person has a defence to a claim that penalty is due if he can show that:

* he, or an employee of his who was directly responsible for allowing the clandestine entrant to be concealed, was acting under duress; or

* he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter and an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter and, on the occasion in question the person or persons responsible for operating that system did so properly.

The question of whether a particular system is ‘effective’ for this purpose must be determined in the light of the current Civil penalty code of practice for vehicles [The Carriers' Liability (Clandestine Entrants) (Revised Code of Practice for Vehicles) Order 2004 SI 2004 No. 250].

Civil Penalty Accreditation Scheme for hauliers

The UK Visas and Immigration's Civil Penalty Accreditation Scheme was set up to reduce the risk of receiving fines by ensuring that haulage companies have effective systems to reduce clandestine entrants. Companies (but not individual drivers) may apply to join the scheme which is voluntary. If a company is accredited and operates the vehicle, it will not receive a penalty if a clandestine entrant is discovered in the vehicle.

However, a penalty may still be imposed on a driver employed by an accredited company who does not work in accordance with the scheme. In that case, the company will still be liable to pay the driver’s penalty.

Objections and appeals against a penalty

There is a right to object to a penalty and a right to appeal to a county court against a penalty within 28 days. There is official guidance on Objection and appeals notice: clandestine entrants.

Human Rights Act and EU law arguments

In International Transport Roth GmbH & Ors v Secretary of State For the Home Department [2002] EWCA Civ 158 (22nd February, 2002), four groups of lorry drivers and haulage companies, some 50 in all, challenged the lawfulness of the Clandestine Entrants scheme and the Home Secretary’s decisions that were are liable for penalties under it, on the grounds that the legislation was:

*  incompatible with the European Convention on Human Rights (Article 6 right to a fair trial and Article 1 of the right to peaceful enjoyment of possessions);

* inconsistent with the provisions for the free movement of goods and the right to provide haulage services contrary, respectively, to Articles 28 and 49 of the EC Treaty.

 The High Court upheld the challenges but the Court of Appeal (by a majority decision) overturned the decision of the High Court.

Criminal enforcement

There are no criminal offences created by the clandestine entrants legislation. However, an offence is committed if a person does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union, knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual and knows or has reasonable cause for believing that the individual is not a citizen of the European Union. A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding 14 years, to a fine or to both [Immigration Act 1971 s.25].

 

HGV road user levy

Following widespread lobbying by the UK road transport industry for legislative action to correct the imbalance in the system whereby UK hauliers paid charges to use roads in other European countries, but hauliers visiting the UK paid nothing to use UK roads, the Coalition Government committed to introducing charging for heavy goods vehicles in the Coalition Agreement in May 2010.

Following a consultation process, Parliament passed the HGV Road User Levy Act 2013. The Government’s policy behind the legislation is that most UK operators will pay no more than they currently do, due to other measures, principally reductions in Vehicle Excise Duty, to be introduced at the same time as charging. Foreign hauliers will pay up to GBP 10 a day or GBP 1,000 a year to use UK roads.

The HGV levy is an excise duty chargeable on mechanically propelled vehicles with a revenue weight of 12,000 kg or more (heavy goods vehicle or ‘HGV’). In the case of a UK heavy goods vehicle, the registered keeper or other keeper is liable to pay the levy. In the case of a non-UK heavy goods vehicle, each person who is the holder of a Community licence in respect of the vehicle is liable to pay the levy, as well as any other person by whom the vehicle is kept is also liable.

The levycame into force on 1 April 2014. From this date, UK registered vehicles must pay the levy alongside their vehicle excise duty (VED). Vehicles registered outside the UK must pay the levy before entering the UK and using the road network. There is an official portal for payment of the levy by foreign operators,

[Page updated: 09/01/2016]

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