The Department for Transport, which claims “various operators” have “sought to exploit the wording of the derogation”, says its view is that the derogation applies to vehicles transporting animal waste and carcasses from abattoirs, and does not extend to vehicles transporting animal ‘derived products’ more generally.
This rules out products which, although originally animal waste and carcasses not fit for human consumption, have been processed to make a product, such as blood and bone fertiliser and tallow.
The DfT also says the derogation should not be deemed to apply to food waste materials from supermarkets, shops or fast food outlets such as meat or dairy products past their sell-by date, waste from a subsequent butchery process, or oil that has been used to cook meat.
The guidance follows an embarrassing episode for the government last year on the subject of animal waste transport, when VOSA was criticised by a judge for launching a prosecution against companies for failing to use tachographs, despite this apparently contradicting the agency’s previous approach.
The case hinged on whether the operators should have been using tachographs as per EU hours rules, or manual logbooks as per domestic regulations.
In his witness statement, Roy Graves, transport adviser to GH Klein & Son Ltd, told the courts that VOSA’s interpretation of the derogation in the Lincolnshire area, in which the firm’s vehicles had been stopped prior to the prosecution, appeared to be at odds with the view taken by the agency in the rest of England and Wales.
“If we were convicted for failing to use tachographs, it would put us at a disadvantage from those other businesses carrying out the transportation of Category 3 waste. The reason for this is because the rules under the EU drivers’ hours legislation are far more restrictive than under domestic legislation.
“Drivers have to have breaks of a set length at certain times which is not often practical when the goods you are carrying contain animal by-products. The smell which emanates from the vehicles is extremely strong, particularly in warmer weather and it can be difficult for drivers to find a suitable place to take a break without inconveniencing other road users, pedestrians, residents or occupants of local buildings.
“Our drivers often take a break during their driving day but it is not at any set time. This allows the drivers flexibility to find an appropriate place to take their break away from other people. This usually requires them to veer off their scheduled route to effectively find somewhere in the middle of nowhere to park. If they were subject to the rigid time constraints of taking a 45-minute break every four and a half hours as per the EU drivers’ hours rules, this would be extremely difficult.
“In addition, it is very often the case that drivers are asked to move along having chosen what they believe to be a suitable place to take their break due to the strong odour produced by the vehicle. Under the EU drivers’ hours legislation, they would not be permitted to move the vehicle during their breaks without breaking the law.”
Last June, ruling that proceedings against GH Klein & Son Ltd and another defendant, Prosper de Mulder Ltd, be halted and awarding them costs, judge DJ Stobart said that the prosecution amounted to an “abuse of process” by VOSA, which he said was “a very exceptional finding”.
“Two respectable businesses, and a respectable lorry driver… did not use tachographs, they used logbooks because they felt that they were covered by the derogation applying to meat and waste products.
“The history of the matter is that for many years it would appear that VOSA officers have assumed that the position taken by companies has been proper and that that has led to a long established practice by the companies and drivers keeping a logbook, rather than using a tachograph.
“Maps show stoppages by VOSA of the defendants’ vehicles throughout the country over a long period of time, and no hint has been given that using a logbook would place them in peril of prosecution,” he found, adding that the prosecution of one driver for failing to keep his logbook reinforced this position.
“I find no difficulty in saying that the defendants, if they were breaching the rule, have to an extent been pointed towards that breach, and acting in the way they did by the officers of the prosecuting authority, and it would seem that at no stage did VOSA clarify their position as regards the use of tachographs or its reading of the substance of the derogation.”
Roy Graves told Transport Operator shortly before we went to press that he was relieved the situation surrounding animal waste had finally been clarified.
“But nevertheless, this has given us the problem of adjusting our entire work schedule, and still remaining competitive with other companies within our industry,” he added.
Read VOSA’s guidance note at: http://tinyurl.com/dyyx3lx