Andrew Woolfall, of Backhouse Jones Solicitors, considers the legislation governing heavy loads and the current trends in its enforcement.

Introduction

In recent months, it appears that the enforcement authorities, whether VOSA or the police, are taking a renewed interest in vehicles or loads that exceed the usual permitted dimensions. This applies to both "construction and use" vehicles and ones that are carrying abnormal loads under the authorisation of the Road Vehicles (Authorisation of Special Types) (General) Order 2003, often referred to as the STGO.

Construction and use regulations

All commercial goods vehicles are initially required to comply with the provisions of the Road Vehicles (Construction and Use) Regulations 1986. These rules specify the maximum dimensions of vehicles, trailers or vehicle combinations, along with vehicle weights. The regulations also prescribe limits for any "overhang" that may occur due to a load being carried. The permitted length of any individual vehicle, trailer or combination is often dependent upon a number of factors, including its form (eg whether it is an articulated or drawbar trailer or vehicle combination), its year of manufacture and even its ultimate use (eg agricultural vehicles and trailers).

The 1986 regulations also clearly define how the length and width of a vehicle should be calculated and this is one area in which VOSA has been paying particular attention. The rules provide for certain items of equipment or features of the vehicle and trailer to be excluded from the calculation, usually on the basis that they are not a permanent or essentially permanent feature of the vehicle or do not increase its carrying capacity. The last 12 months have seen a spate of prosecutions brought against drivers and operators where VOSA claims that while a vehicle might be originally constructed so as to comply with the law, the use of such additional features means that the permitted dimensions have been exceeded. In particular, it appears that VOSA has been focusing its attention on car transporters and vehicles carrying straw and hay.

Car transporters

Dealing firstly with car transporters, these vehicles and trailers frequently have "brackets" at either end of the vehicle to support the wheels of cars that are being carried. These frequently extend from within the main structure of the vehicle or trailer and, when they are in the "stowed" position, the car transporter meets all legislative requirements. However, when these brackets are extended, VOSA argues that the permitted dimensions are exceeded.

There has been a substantial debate as to whether the "brackets" on car transporters should be included for calculating the overall length of a vehicle, trailer or combination. So far, the courts appear to have accepted that these brackets are either not of a permanent character, and therefore should be ignored, or do not increase the carrying capacity of the vehicle and similarly should not be taken into account. However, it remains to be seen whether VOSA will take these matters further.

Given that car transporters are often of the same design and construction across Europe, and given the fact that these vehicles or combinations are often lawful in many European countries but appear to potentially fall foul of British legislation, VOSA enforcement policy could have wide-reaching implications.

Hay- and straw-carrying vehicles

A similar trend that appears to have developed with VOSA is the prosecution of hay- and straw-carrying vehicles. Here, a tail board is often lowered to support the last line of straw bales. Alternatively, a “gate” or other structure might be used. Again, such devices are often detachable and not used when the vehicle travels empty or partially loaded. However, when they are used, VOSA appears to be taking a stance, saying that such equipment does form part of the vehicle and should be taken into account when calculating width or length.

Again, this sees a vehicle that would otherwise comply with the regulations potentially falling foul of the law. Decisions in such cases are still awaited.

The above points illustrate how easily a standard vehicle can attract a prosecution when additional equipment is used, whether it is used to assist in the operation of the vehicle or to support a load. In such circumstances, there appears to be no issue with regard to the load exceeding any permitted "overhang" but rather, VOSA claims, that the vehicle’s actual permitted dimensions are incorrect.

Overhanging of loads

There have, though, been instances where the police or VOSA have looked at the "overhang" of loads, despite the fact that this has been deliberately taken into account in the design of the vehicle and trailer. One area that has been investigated involves the transportation of specialist agricultural equipment such as combine harvesters. Here, the vehicle and trailer manufacturers have often created the vehicle combination in such a way as to safely transport the equipment but this does lead to the permitted overhang at the rear of the trailer being exceeded.

The vehicle and trailer combination may be lawful within Europe but fall foul of British domestic legislation. In circumstances such as this, the issues can often only be resolved by making representations to government and seeking a change in either the law or enforcement policy or alternatively by obtaining special permits to authorise the use of each individual vehicle.

Where a load can be transported on a vehicle complying with the "construction and use" weight limits, but which would otherwise exceed the permitted width, length or overhang, provisions do apply within the 1986 rules that allow some flexibility. This does, though, require a number of conditions to be satisfied, which might include the marking or lighting of the load, notification being given to the police, and the presence of attendants. If, as can be seen below, the operator fails to comply with any one of these requirements, then a prosecution can be brought.

Abnormal loads

Similar requirements are often imposed on vehicles transporting abnormal loads or operating under the provisions of the STGO. This 2003 order authorises the use, on public roads, of vehicles that cannot comply with the 1986 regulations by virtue of the load being carried.

If the operator and driver comply with all the relevant provisions that relate to the vehicle and type of load being carried, then protection is provided to the operator and driver against prosecution by the authorities for breaching the standard "construction and use" regulations. If the vehicle movement does not comply with all of the provisions of the STGO, then the vehicle reverts back to the 1986 regulations and prosecutions can be brought for any number of relevant offences, which might include exceeding the permitted weight, width, length, etc.

Despite popular misconceptions, there is no actual offence under the STGO, just the original “construction and use” issues. This is why vehicles are often prosecuted for being substantially overloaded, with figures of 100–200% not uncommon. A vehicle combination may be permitted to operate at up to 150,000kg gross weight under the STGO but, if the full provisions of the order are not observed, it reverts to the “construction and use” maximum of 44,000kgs. If it is operating at the higher weight, this is then deemed to be a 341% overload.

Regional variations in compliance

Historically, the enforcement authorities (in particular the police) have taken something of a "mixed" approach to the legislation and the need to be completely compliant with every relevant provision contained in the STGO. Some regions appear to require absolute compliance while others are often more flexible and pragmatic.

The need for "absolute" compliance often follows serious accidents within a particular county or region, and particular attention might be paid to certain types of vehicle. For example, in recent years the authorities in Dorset have paid particular attention to vehicles transporting boats. In and around Lincolnshire, the police have closely examined "abnormal load vehicles" transporting agricultural equipment.

While targeted enforcement campaigns may cause inconvenience for operators, it should be remembered that the police are simply enforcing the letter of the law. As is stated above, the STGO does require absolute compliance if the operator and driver is not to be prosecuted for "construction and use" offences. Where breaches of the order do occur and lead to prosecutions, these are often for frequently recurring items. There may be a failure to display the relevant “STGO” plates or to properly mark or light the load.

Some police forces are keen to ensure that lights or markers are properly placed and, if they are outside the tolerances provided by the STGO, then a breach is deemed to occur and proceedings brought. These are generally items that an operator can easily prevent by being thorough in preparing the vehicle and load before it goes onto the public highway. Once of the most obvious infringements for the authorities to detect is when multiple loads are being carried.

The STGO is designed to allow only one item to be transported, with limited exceptions. However, there has been a recent trend for operators to try and justify using a vehicle under the STGO to carry multiple items in an attempt to save on the number of journeys required and thus reduce their overheads. By and large, this is just not permissible and is something very obvious for the police or VOSA to spot.

Exceeding weights or dimensions

Another regular cause of non-compliance is the failure of the vehicle and load to meet the notified weight or dimensions, whether due to a change of intended vehicle or load or a failure to properly notify in the first place. Invariably, whenever an abnormal load (or one moving under the special provisions of the “construction and use” regulations) is stopped nowadays, the vehicle and load is measured and, where possible, weighed. If the dimensions or weight exceed those in the notice then, again, a prosecution is likely to follow.

The issue of providing notification to the police is itself something that, in some geographical areas, is becoming contentious. This involves a question as to just how "specific" the information has to be. Historically, operators who have regular routes transporting the same type of equipment have given "blanket" notifications that might cover any period of up to one month. The actual date and time of the journey is not specified and, while a vehicle and its dimensions might be given, provision is often made for a substitute.

Traditionally, the police have accepted such notifications, recognising that operators require flexibility and that, where there may be numerous movements within the month, the notification of each individual journey would potentially bring the system to a standstill. However, some police regions have now started to take a different view, stating that such "blanket" notifications are not permissible and that each individual journey must be accurately notified.

This is often justified on the grounds that the police have many obligations to the public and other road users and must be able to "risk assess" every specific journey. If the police do not know the exact time of the movement then this cannot be done properly.

Police forces such as Merseyside have refused to accept blanket notifications as being compliant with the STGO and therefore deem any subsequent move to be in breach of the “construction and use” regulations. Prosecutions have recently been brought against operators who have continued to use the "blanket" style notification rather than provide specific details. However these have been within the purview of the magistrates’ court and as yet no definitive decision has been made by the higher courts, which would become binding.

Anecdotal evidence suggests that, in the past year or so, several police forces have looked at taking a similar stance only to encounter problems with the high number of notifications actually received when operators notify every journey. Instead of just one blanket notification covering a month’s worth of movements for many very similar vehicles and loads, tens, if not hundreds, of notifications are provided. This in turn puts strain on the authorities and often leads to compromises whereby some form of blanket notification, covering a much shorter period, is allowed for designated routes/journeys at particular times of the day.

In some counties and areas, the authorities have also developed a system of issuing a permit to operators once the notification of an STGO movement has been received. This will often clarify the route and journey times and, crucially, will require a copy of the permit to be carried by the driver. Again, the absence of the permit has been cited in prosecutions. The actual legal status of such permits is questionable, given that the STGO only requires notification to be given to the authorities and then for the movement to take place in accordance with that notice.

In order to try and assist operators who are engaged in moving abnormal loads and, perhaps, ensure some more common standards of practice and enforcement, the Association of Chief Police Officers (ACPO) has issued a guidance note (aimed at those working within the police) on how to deal with such movements.

Whenever a vehicle carrying an abnormal load, or an “oversized” vehicle is stopped by either VOSA or the police, there are invariably costs to be borne by the operator. The first and foremost one is naturally those that arise out of the delay. Delivery slots or connections might be missed and extra wages might have to be paid. Where an abnormal load is involved, it is not unusual for the authorities to “park the vehicle up” while a new notice of movement is served and a police escort arranged. This can often take several hours and might mean that it is the next day before the vehicle continues its journey. Where there are issues with the dimensions of the vehicle, it has been known for the authorities to require a load to be split and to allow the vehicle to be modified, and any extra supports or brackets removed, before the journey continues. This, of course, then requires a second vehicle to help in transporting the load.

Fixed penalty notices

The extension several years ago of the fixed penalty notice scheme and, importantly, the ability of VOSA to use these penalties, has in some ways led to an increase in enforcement activity for oversized vehicles or abnormal loads and, conversely, a reduction in the number of cases that actually go to court. Often, it is the driver who is at “the sharp end”, receiving the notice and having to pay the fine. However, where, over a period of time, several notices have been issued to vehicles of the same operator, prosecutions are then brought against the latter. Where, though, a single infringement is deemed to be particularly serious then proceedings will usually be commenced. As these types of matter fall outside the usual sentencing guidelines, advocates then have to work hard to keep fines or penalties to a minimum.

For example, fines for overloading were traditionally calculated by giving a base figure for the first 10% and then adding to that figure for each subsequent percentage overloaded. If the overload, at construction and use levels, is 341%, magistrates can easily be tempted to look at imposing fines at the maximum level. Here the advocate has to be able to fully explain the legislation, the “technical nature” of the overload and the true capacity of the vehicle when operating properly under the STGO.

Changing vehicle technologies or working practices often leads to legislation appearing to be outdated and not fully equipped to deal with operations in 2013 and beyond. Currently, the Government has authorised and is supervising trials for longer trailers, both articulated and drawbar, and there have been high-profile attempts to further increase vehicle dimensions through the use of “road trains”.

Changes in vehicle and load dimensions and weights

Changes in vehicle and load dimensions and weights may come in the not too distant future but, at the moment, any operator looking to use vehicles, trailers or combinations which do not wholly comply with the 1986 regulations (or are, at the least, pushing the very limits of the permitted dimensions and definitions) should always give careful thought, and even possibly seek specialist legal advice, as to how the vehicle or load might be treated by the enforcement authorities.

What often starts as a trend in enforcement for one particular type of vehicle or load often spreads across other types and has a more general application.

Conclusion

Operators should not feel complacent and think that enforcement action is only targeted in the areas described above. Careful thought should be given to any vehicle which may potentially exceed permitted lengths, widths or overhangs.

Last reviewed 28 August 2013