Dyne Solicitors RSS FEED

Cabotage - unfair competition or an unnecessary obstacle to free trade?

Cabotage laws changed in May 2010 and this was heralded as providing a fairer more workable system.

Cabotage is essentially the carrying out of domestic haulage within one EU Member State by a foreign based operator. 

A foreign haulier is permitted to enter the host Member State with a laden vehicle but once the load has been delivered, the haulier is only allowed up to three cabotage operations within seven days (from the last unloading of the incoming international transport). The onus is on the haulier to provide evidence that they are operating within the meaning of the cabotage rules and are not engaged in a permanent or continuous activity. This is a more restrictive regime than the one it replaces, but the idea is for there to be consistent standards which will be easier to enforce across the EU and reduce unfair competition. It appears that VOSA has yet to produce any guidance on Cabotage and at least in some respects other published guidance we have seen appears to have some interesting interpretations of the rules. 

VOSA enforces the cabotage rules in the UK and since the new rules came into force VOSA includes cabotage compliance as part of their roadside checks of foreign trucks to ensure that they are not carrying out UK domestic haulage work illegally. Drivers breaking the EU cabotage rules will be issued with a fixed penalty of £200 at the roadside. This may be an effective deterrent in the context of general haulage but it is deterrent of questionable value in the context of high worth abnormal load projects such as the delivery of turbines, blades and towers to wind farm projects. If the value of a project is high, the risk of detection is low and the punishment relatively inconsequential, it must surely be a commercial risk worth taking for some operators? It does appear however that VOSA is considering other sanctions such as impounding vehicles it catches flouting the rules.

Dyne Solicitors Limited - 01829 773100, info@dynesolicitors.co.uk © Dyne Solicitors 2011. While we make every effort to ensure the information contained in these RSS feeds is correct at the time of writing, Dyne Solicitors Limited cannot accept any liability for any proceeding, loss, claim, damage or expense (whether direct or indirect) arising in connection with these RSS feeds.This RSS feed is provided for general information only and applies to England and Wales only. It is not intended to constitute legal advice and should not be used as a substitute for legal advice.

Yes Mobile Batching Vehicles are Plant

5th May 2010:

Dyne Solicitors successfully appealed a decision of Liverpool Magistrates Court ending many months of uncertainty for the mobile batching plant industry, represented by the Batched on site Association (BSA). Mobile Batching Vehicles (sometimes called volumetric trucks) fall within the definition of engineering plant. This means that the Construction and Use Weight Restrictions do not apply and such vehicles are permitted to operate to their design weights.

Dyne Solicitors Limited - 01829 773100, info@dynesolicitors.co.uk

© Dyne Solicitors 2011. While we make every effort to ensure the information contained in these RSS feeds is correct at the time of writing, Dyne Solicitors Limited cannot accept any liability for any proceeding, loss, claim, damage or expense (whether direct or indirect) arising in connection with these RSS feeds.This RSS feed is provided for general information only and applies to England and Wales only.  It is not intended to constitute legal advice and should not be used as a substitute for legal advice.

 

Operator Licence Compliance & Drivers Hours update

　

Operator Licence Compliance & Drivers Hours update, plus insecure loads and drink & drugs prevention policies

Friday 17th July 2009

You are invited to join our team and other directors, managers and supervisors from your industry at our workshop on Friday 17th July 2009. Anyone involved in the operation and management of commercial goods vehicles is strongly recommended to attend.

We will explore the latest legal position on the duties and obligations relating to operator licensing and load security, cover driver’s hours and provide practical advice essential for compliance. As transport professionals, the management of drink and drugs in the workplace should be a major concern and we will also explore this issue with practical advice and solutions.

　Venue: Dyne Solicitors Limited, Tattenhall (Nr Chester)

10.45 Registration and coffee

11:00 – 12:30 Operator Licensing/Insecure Loads

12:30 – 13:30 Lunch - Thai Restaurant

13:45 – 15:30 Drivers Hours/Managing Policies for Drugs/ Drink-Driving and Related Employment Law Issues

The workshop will cover topics including:

• the legal duties of a nominated transport manager

• the significance of the undertakings and obligations given to the Traffic Commissioner by a licence holder

• tried and tested methods to ensure the transport operation remains fully compliant with these undertakings and obligations

• load security offences

•simple steps to reduce the risk of prohibition notices, prosecutions and convictions related to insecure loads

• Drivers Hours requirements

• Drink and drugs in the workplace and employers’ responsibilities, including health and safety and occupational driving policies.

This workshop includes an ample opportunity for questions and answers, in a relaxed atmosphere. It is suitable for CPC holders, as well as those without the CPC qualification, and for restricted as well as standard national and international licence holders.

Our goal is to provide practical solutions, to give you the information and knowledge you need to achieve compliance, along with techniques for handling potential problems. Easy to follow manuals written by us and handed out at the workshop will reinforce the key issues discussed. We will also send out certificates of attendance to each participant, for inclusion in personal training portfolios. We guarantee you will benefit from this Workshop, which from a cost benefit analysis is an absolute bargain.

Light refreshments and a quality lunch at our local Thai Restaurant will be provided.

Booking fee £95 per person. Contact Jenny, Nicky, Miranda or Katharine on 01829 773 100 to reserve your place (numbers limited)

Think before you drive...

From the 18th August 2008 careless or inconsiderate drivers who cause fatal accidents can face up to five years imprisonment. To be careless, the driving need only fall ‘below’ the required standard of a competent and careful driver.

Whether a momentary lapse lands you with just 3-9 points on your licence, a community order or even a term of imprisonment now turns on whether or not such lapse leads to a death. This is an extremely sobering thought because the consequences of careless driving can be extremely wide ranging and random. Previous sentencing policy put greater emphasis on the nature of the carelessness itself rather than the effect of such carelessness.

According to recently published sentencing guidelines, where the level of carelessness is low and there are no aggravating factors (i.e. no previous convictions for bad driving or the careless driving did not involve using a mobile phone), even the fact that death was caused will not normally be sufficient to justify a prison sentence. However, a fine is unlikely to be an appropriate sentence for this offence; and, where a non-custodial sentence is considered appropriate, this will normally be a community order.

The most serious level for this offence is where the offender’s driving fell not that far short of dangerous. Where the case is particularly serious there is considerable scope, within the 5 year maximum, to impose long sentences.

Disqualification from driving and endorsement are mandatory, and the offence carries between 3 and 11 penalty points when the court finds special reasons for not imposing disqualification. There is also a discretionary power to order an extended driving test where a person is convicted of this offence.

Dyne Solicitors Limited - 01829 773100, info@dynesolicitors.co.uk

© Dyne Solicitors 2009. While we make every effort to ensure the information contained in these RSS feeds is correct at the time of writing, Dyne Solicitors Limited cannot accept any liability for any proceeding, loss, claim, damage or expense (whether direct or indirect) arising in connection with these RSS feeds.This RSS feed is provided for general information only and applies to England and Wales only.  It is not intended to constitute legal advice and should not be used as a substitute for legal advice.

Red Diesel - using vehicles off road.

As mentioned, in a previous feed there have been revisions to the excepted vehicle categories in Schedule 1 of the Hydrocarbon Oil Duties Act 1979. The most recent changes were effective from 1st April 2008. A vehicle that is not used on the public road and has no licence under the Vehicle Excise and Registration Act 1994 is an excepted vehicle (i.e. can be run on red). But if such a vehicle has become untaxed since 31 January 1998 it requires a Statutory Off-Road Notification (SORN). Such vehicles will be eligible to use red diesel if a SORN declaration has been made. Unlicensed vehicles that do not require a SORN will continue to be able to use red diesel without a SORN declaration if kept off-road.

This is not something new but does, in our experience, create confusion amongst operators using vehicles off road. Worryingly, HMRC appear to be adopting a zero tolerance approach!

The message is if you are using a vehicle off road and want to be eligible for red diesel (a) make sure it is unlicensed and (b) make sure you submit a SORN for the vehicle. Do not take the vehicle on a public road unless (a) you license it first and (b) its use falls within one of the available exemptions covering on road use. Such exemptions are now rather more limited than they used to be so we suggest you tread carefully and seek advice.

Dyne Solicitors Limited - 01829 773100, info@dynesolicitors.co.uk

© Dyne Solicitors 2008. While we make every effort to ensure the information contained in these RSS feeds is correct at the time of writing, Dyne Solicitors Limited cannot accept any liability for any proceeding, loss, claim, damage or expense (whether direct or indirect) arising in connection with these RSS feeds.This RSS feed is provided for general information only and applies to England and Wales only.  It is not intended to constitute legal advice and should not be used as a substitute for legal advice.

Think before you drive!

From the 18th August 2008 careless or inconsiderate drivers who cause fatal accidents face up to five years imprisonment. To be careless, the driving need only fall ‘below’ the required standard of a competent and careful driver. Whether a momentary lapse lands you with just 3-9 points on your licence, a community order or even a term of imprisonment now turns on whether or not such lapse leads to a death.

This is an extremely sobering thought because the consequences of careless driving can be extremely wide ranging and random. Previously sentencing policy put greater emphasis on the nature of the carelessness itself rather than the effect of such carelessness. According to recently published sentencing guidelines where the level of carelessness is low and there are no aggravating factors (i.e. no previous convictions for bad driving or the careless driving did not involve using a mobile phone) even the fact that death was caused will not normally be sufficient to justify a prison sentence. However a fine is unlikely to be an appropriate sentence for this offence; and, where a non-custodial sentence is considered appropriate, this will normally be a community order. The most serious level for this offence is where the offender’s driving fell not that far short of dangerous.

Where the case is particularly serious there is considerable scope, within the 5 year maximum, to impose long sentences. Disqualification from driving and endorsement are mandatory, and the offence carries between 3 and 11 penalty points when the court finds special reasons for not imposing disqualification. There is also a discretionary power to order an extended driving test where a person is convicted of this offence.

Dyne Solicitors Limited - 01829 773100, info@dynesolicitors.co.uk

© Dyne Solicitors 2008. While we make every effort to ensure the information contained in these RSS feeds is correct at the time of writing, Dyne Solicitors Limited cannot accept any liability for any proceeding, loss, claim, damage or expense (whether direct or indirect) arising in connection with these RSS feeds.This RSS feed is provided for general information only and applies to England and Wales only.  It is not intended to constitute legal advice and should not be used as a substitute for legal advice.

Losing your Operator Licence is Purely Voluntary

Losing your Operator Licence is Purely Voluntary The disciplinary issues I frequently have to contend with on behalf of clients are maintenance-related. When I compare the standards expected by Traffic Commissioners when I did my first disciplinary public inquiry 15 or more years ago to the standards of today, it is clear the requirements are far stricter than they used to be. I am unofficially told that the motivating factor is ensuring vehicles do not break down and cause congestion. Congestion on our roads is a major issue for the Highways Agency which has conducted considerable research into the issue. What is to blame? Yes, of course, HGVs, especially the larger and slower moving ones. Losing an Operator Licence is something that is entirely voluntary. The best way to lose a Licence is to operate more vehicles than you are entitled to, fail to regularly inspect your vehicles, have no systems in place for driver daily checks, operate overloaded vehicles, permit drivers to breach EU Drivers Hours legislation etcetera. We run regular Operator Licensing Compliance Seminars, which explain the requirements of operator licensing and I commend this seminar to anyone who operates HGVs as well as to CPC holders and Transport Managers. John Dyne, Director

Dyne Solicitors Limited - 01829 773100, info@dynesolicitors.co.uk

© Dyne Solicitors 2008. While we make every effort to ensure the information contained in these RSS feeds is correct at the time of writing, Dyne Solicitors Limited cannot accept any liability for any proceeding, loss, claim, damage or expense (whether direct or indirect) arising in connection with these RSS feeds.This RSS feed is provided for general information only and applies to England and Wales only.  It is not intended to constitute legal advice and should not be used as a substitute for legal advice.

Red Diesel - What's in your tank?

There has been a wholesale review of what types of vehicles are entitled to use rebated fuel.

An example of this is the sweeping away of the road construction exemption and replacing it with an altogether more restrictive regime. If you are running road-going vehicles on red diesel, now would be a very good time to review the legality of what you are doing.

Dyne Solicitors Limited - 01829 773100, info@dynesolicitors.co.uk

© Dyne Solicitors 2008. While we make every effort to ensure the information contained in these RSS feeds is correct at the time of writing, Dyne Solicitors Limited cannot accept any liability for any proceeding, loss, claim, damage or expense (whether direct or indirect) arising in connection with these RSS feeds.This RSS feed is provided for general information only and applies to England and Wales only.  It is not intended to constitute legal advice and should not be used as a substitute for legal advice.

Waste on the road

Envirolink Northwest’s Waste and Recycling Team is once again teaming up with CIWM to hold an Event for the Recycling and Waste Industry. Dyne Solicitors is sponsoring this event and John Dyne will be speaking about operator compliance and Kathryn Lucas (Dyne Solicitors) will be speaking about key employment law issues.

Venue: Warrington Wolves Platinum Lounge, Warrington.

Time: Friday 3rd October 2008. 9.30am – registration with refreshments, 10.00am-3.30pm – seminar and questions.

Comment:

Recent discussions with industry professionals highlighted the interdependence of transport and good waste management. From kerb side collections of municipal waste to long distance haulage of commercial waste for reprocessing, transport is an integral part of the industry. No industry faces such a significant transport challenge; massive volumes of low/no value material with materials ranging from inert demolition waste to hazardous waste.

Dyne Solicitors Limited - 01829 773100, info@dynesolicitors.co.uk

© Dyne Solicitors 2008. While we make every effort to ensure the information contained in these RSS feeds is correct at the time of writing, Dyne Solicitors Limited cannot accept any liability for any proceeding, loss, claim, damage or expense (whether direct or indirect) arising in connection with these RSS feeds.This RSS feed is provided for general information only and applies to England and Wales only.  It is not intended to constitute legal advice and should not be used as a substitute for legal advice.