Publication date: Tuesday, September 11, 2018
Richard Pelly, Director of Pellys Transport & Regulatory Law, reviews the application of the drivers’ hours rules to those who run small goods vehicle operations.
The rules that will apply to a particular goods vehicle operation will depend upon the vehicles that an operator is using as well as what an operator is doing with them. Knowing which rules apply is a vital first step in making sure that an operator and its drivers comply with the applicable rules. It is very easy to fall foul of the rules (and to breach them) if one does not know what the rules require or why and/or when they might be relevant.
Most operators will be familiar with the basic drivers’ hours rules (and all O-licence holders ought to know them well). They are set out in EC Regulation 561/2006 and they have been a feature of haulage operations for many years.
There are two vital components to the drivers’ hours and tachograph rules: first, what can drivers do (for example, how long may they drive and/or work before they are required to take a break or rest) and second, what are they required to record and how must those records be made.
For many operators and drivers, these two sets of rules are sometimes regarded as being one and the same thing. But on occasion, a trawl through the regulations can help clarify how an operator should approach making sure that it knows which rules apply to its operations and why.
What are the relevant regulations and what do they say?
Article 2.1 of EC Regulation 561/2006 states that:
This regulation shall apply to the carriage by road:
of goods where the maximum permissible mass of the vehicle including any trailer, or semi-trailer, exceeds 3.5 tonnes …
Article 3.1 of EU Regulation 165/2014 (the tachograph regulation) states that:
Tachographs shall be installed and used in vehicles registered in a Member State which are used for the carriage of passengers and goods by road and to which EC Regulation 561/2006 applies.
So, operators will need to fit tachographs in vehicles — if the use of those vehicles (and any trailers which they may use to tow them) mean that the operation of those vehicles (and trailers) are required to be carried out in compliance with EC Regulation 561/2006.
For most of those operating goods vehicles over 3.5 tonnes, the fitting of a tachograph is taken care of by the manufacturer with tachographs being fitted as standard.
what about operators who are using small lorries and vans that do not exceed 3.5 tonnes (and so do not come with a tachograph fitted as standard), which have the capability to tow a small trailer but when doing so would take them over 3.5 tonnes?
and what is the legal position for operators who use vehicles that do not exceed 3.5 tonnes, but which are fitted with towbars — where do they stand? Do they need to arrange for tachograph units to be retrofitted just in case they may use the vehicle to tow a trailer in circumstances where EC Regulation 561/2006 would apply?
Weights and measures
Article 4(m) of “561/2006” states that “maximum permissible mass” means the maximum authorised operating mass of a vehicle when fully laden.
Government guidance confirms that the maximum authorised mass “means the weight of a vehicle or trailer including the maximum load that can be carried safely when it is being used on the road. This is also known as gross vehicle weight (GVW) or permissible maximum weight”.
Gross vehicle weight is defined in the Road Vehicles (Construction and Use) Regulations 1986 as:
in relation to a motor vehicle, the sum of the weights transmitted to the road surface by all the wheels of the vehicle
This is different to “train weight” which is defined as being in relation to a motor vehicle which may draw a trailer, the maximum laden weight for the motor vehicle together with any trailer which may be drawn by it
Where does this leave the operators of small goods vehicle and trailer combinations?
The uses to which operators put their vehicles are very varied, even more so when one takes into account those operators who run a mix of vehicles including works vans and small lorries instead of — or alongside — larger lorries.
Particular problems arise when businesses rely primarily on vehicles with a maximum permissible mass of no more than 3.5 tonnes. The use of these vehicles does not require compliance with EC Regulation 561/2006 and a tachograph is not required to be fitted to such vehicles (even if a towbar is fitted), provided they are not also towing a trailer in circumstances where the maximum permissible mass of the vehicle and trailer combination does exceed 3.5 tonnes. If (and when) that happens the rules — ie “561/2006”, the tachograph regulation and possibly the Road Transport (Working Time) Regulations 2005 — will apply, and a tachograph will be required to be fitted to the towing vehicle.
One can easily think of scenarios where this could be an issue. Landscaping and gardening businesses that can make do for much of the time with 3.5-tonne lorries or smaller vehicles, but who occasionally need to hook up a trailer to carry an extra load for a particular job.
Outward bounds activity providers that from time to time want to use a trailer to carry additional equipment for a particular activity. The providers of exhibition stands and the like who sometimes have a larger job that lends itself to using a trailer.
What many of these businesses have in common is that they are not normally “HGV operators”; they do not necessarily hold O-licences and they are not always aware of the occasions when their use of vehicles and trailers mean that “561/2006” and the rules associated with the drivers’ hours rules apply so that their drivers are required to record their duties using a tachograph, and/or that their operations may only be carried out lawfully if they hold an O-licence.
Where EC Regulation 561/2006 does not apply, it may be the case that the British Domestic rules do.
The law in this area is clearly complex and therefore specific advice should be sought on the application of EU and domestic rules to the use of small goods vehicles with or without trailers in a mixed operation.
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