Official Report (Hansard)

Session: 2008/2009

Date: 02 October 2008

Goods Vehicles (Licensing of Operators) Bill

COMMITTEE FOR THE ENVIRONMENT

OFFICIAL REPORT

(Hansard)

Goods Vehicles (Licensing of Operators) Bill

2 October 2008

Members present for all or part of the proceedings: 
Mr Patsy McGlone (Chairperson) 
Mr Cathal Boylan (Deputy Chairperson) 
Mr Roy Beggs 
Mr Trevor Clarke 
Mr David Ford 
Mr Tommy Gallagher 
Mr David McClarty 
Mr Ian McCrea 
Mr Alastair Ross

Witnesses:
Mr Colin Eve ) Horticulture Forum for Northern Ireland 
Mr Robin McKee ) 
Mrs Bernie Cosgrove ) 
Mr Richard Lee ) Department of the Environment 
Mr John Martin ) 
Mr Simon Kirk ) Department of the Environment

The Chairperson (Mr McGlone):
I welcome Mr Robin McKee, the chairman of the Horticulture Forum for Northern Ireland, and his colleague Mr Colin Eve, who are here to give evidence on the Goods Vehicles (Licensing of Operators) Bill. Gentlemen, you will have 10 or 15 minutes to make your case, after which members will have an opportunity to ask questions and elicit any further information if required.

Mr Robin McKee (Horticulture Forum for Northern Ireland):
For members who are not familiar with the Horticulture Forum for Northern Ireland, it is a consultative committee that was set up by the Department of Agriculture and Rural Development to represent apple, mushroom and vegetable growers, and nurserymen, landscapers and gardeners. The forum represents mainly small businesses, many of which are family businesses.

I thank members for taking the time to listen to our views on the Bill. I emphasise that all members of the forum fully acknowledge the need for a Bill to increase road safety, and they already adhere to the current legislation, the MOT and PSV monitoring, by keeping their vehicles roadworthy. Colin will now make a presentation to the Committee on our views.

Mr Colin Eve (Horticulture Forum for Northern Ireland):To avoid drastic note-taking, I will leave copies of the presentation for the Committee. The current legislation allows for exemptions for the agriculture, horticulture and forestry industries. At the time the legislation was brought in, those exemptions were introduced with good reason, because we are not hauliers. Our vehicles are not on the roads daily, and we do not make a living from haulage. The majority of the forum’s members may have their vehicles on the road for a small percentage of the year and, through carrying out their tasks, inadvertently fall into the category of carrying goods for reward. Some examples are: the apple grower who uses a vehicle to transport his harvest for eight weeks a year; the farmer who cuts and collects a neighbour’s silage once or twice a year, and the landscape gardener who cuts the grass and prunes the shrubs for Mrs Smith and removes the cuttings to a registered waste centre.

In no way can those activities in our industry be used to imply that we are the same as hauliers, nor can it be claimed that our activities on the road are a risk to road safety. According to PSNI statistics, collision casualties resulting from other road users, including tractors, is less than 1% in any of the last five years. That is a strong indicator that the current regulations work.

The Road Haulage Association is arguing strongly for all-in legislation. Its argument is that some companies that should currently be operating under an operator’s licence are not, thereby endangering lives on the road. I cannot emphasise strongly enough that those lawbreakers should not be confused, or grouped, with those industries that work legally and safely within the current legal exemptions. Our members are not lawbreakers.

The association’s concerns are already addressed in current legislation that provides for the prosecution of those companies that break the law. However, the truth of the matter is that, with only approximately 20 enforcement officers in Northern Ireland, it is not the lack of legislation that allows individuals to continue breaking the law, but a lack of manpower on the ground to catch them.

It has been quoted that the preferred number of enforcement officers is 50, and we suggest that drawing in new industries, such as horticulture, farming and forestry, under the legislation is intended not to improve road safety but to spread the cost of enforcement. The problem with that plan is that by adding all those industries, an increase of enforcement officers from 20 to 50 will be completely lost. The implementation of the new legislation, without including exemptions similar to the current ones, will mean that every single one of the approximately 15,000 farmyards will become an operational centre, as will all premises of landscapers, gardeners and growers. The percentage increase of the population to be policed would far outstretch the percentage increase of law enforcers.

Given that the current number of law enforcers is stretched and unable to catch the lawbreakers, what chance would they have when required to police virtually everyone? The individuals who dare to operate illegally, daily, will simply disappear into the massive sea of bureaucratic visits and policing of all the new operational centres. Surely, it makes more sense to increase the number of law enforcers from 20 to 50 in order to enforce current legislation.

We are wary of the Department’s suggestion that this legislation will cost so little to our members that it is not worth worrying over. The amount quoted to the Horticulture Forum, and probably to the Committee, is approximately £47·62. That quote is indicative of how loaded this new legislation is to the advantage of the haulage industry, and to the disadvantage of those represented by the Horticulture Forum.

The figure is based on those companies that have 10 vehicles with a cost of £2,381 for a five-year licence. That does amount to £47·62 per vehicle per annum — a figure which is frequently bandied about as being the cost of a tyre, and not very much at all if someone’s vehicle is out each day making money from hauling. However, our members are not hauliers, and do not fall into that category. Some will fall into the category of three vehicles, but the majority fall into the category of one vehicle, costing them £152·20 per vehicle — a vehicle which they may use for only one month of the year or even less.

There are those who believe that £152 does not sound very much, but the additional and real cost will not stop there. There is additional record keeping, auditing, additional vehicle maintenance requirements — despite the fact that we are already paying for annual MOTs and PSVs — and the required proof of sufficient financial resources.

For haulage companies, all those requirements are already part and parcel of their daily administration. Indeed, the majority are already required under current legislation. To haulage companies, therefore, the cost and impact is minimal. For our industries, it is all new, and additional to the costs and overheads under which we are already straining.

According to statistics from the Federation of Small Businesses, Northern Ireland is unique in its very high percentage of small businesses, particularly small, family-run businesses for which a large and experienced administrative team is an unknown luxury. The cost of this proposed legislation to our members is by no means simply the cost of a new tyre every year. Those extra costs constantly add to the bureaucratic noose.

The Goods Vehicles (Licensing of Operators) Bill research paper of May 2008 states that the impetus for change comes from the freight industry, whose concerns include the “extent of illegal operations” and the “need for more and better enforcement”. They are losing business to illegal operators. Their concerns may be justified, but why are our industries, which are entirely unlike the freight industry, being asked to contribute to the cost of responding to those concerns? Our industries do not ask for the freight industry to share the cost of legislation affecting us.

If more and better enforcement is needed, why is the freight industry seeking to increase the numbers of operational centres out of all proportion? If you cannot find a needle in a haystack, you do not make the haystack bigger.

It is claimed that Northern Ireland has much weaker freight licensing enforcement powers than GB. Statutory agencies have complained about the standard of Northern Ireland vehicles crossing to GB. Farmers do not go over to GB in order to bring in their neighbour’s silage, and gardeners and landscapers do not take the boat over to England and Scotland in order to landscape Mrs Smith’s garden. It is not the vehicles belonging to our industries that are raising those concerns.

With regard to road safety, according to PSNI statistics, collisions and casualties resulting from other road users, including tractors, amounted to less than 1% in any of the last five years.

On the subject of environmental standards, the Bill research paper states that:

“Present licensing arrangements offer no effective safeguards against operators who pay no attention to the environmental standards of their operating centre”.

By all means change legislation in order to give enforcement officers that facility, but how can that be achieved by creating in excess of 15,000 more operating centres? Law enforcers will be overwhelmed, the cost to decent law-abiding people will be increased, and lawbreakers will be hidden in the sheer volume of operating centres.

The members of the Horticulture Forum for Northern Ireland welcome effective legislation that brings about road safety. However, the proposals will not achieve that by roping in our industries, and we are being rounded up and herded in to reduce the financial burden of addressing the dissatisfaction of the haulage industry.

The Chairperson:
Thank you very much for your presentation. Do members have any queries?

Mr I McCrea:
The views of the horticulture industry have been made very clear. Obviously you will raise some of the relevant issues directly with the Department, but we will also include them with the other matters that we wish to raise. There are important issues concerning whether horticulturalists should be included in the scope of the Good Vehicles (Licensing of Operators) Bill, or even — taking account of Trevor’s opinion — whether the Bill should be passed at all. You have probably added to my colleague’s desire to see the Bill fail. I welcome your presentation; it provides some more food for thought on the issue.

Mr Boylan:
Thank you for your presentation. I understand that, if the Bill is to be passed, you would like there to be exemptions, but you must realise that the hauliers should not carry the entire burden. The purpose of the Bill is to achieve road safety, and a balance must be struck. I speak from a rural point of view, and 70% of road fatalities occur on rural roads. I take on board the points that you make about the industry, but, at the end of the day, it is for the Committee to scrutinise the Bill and ensure that it can achieve its aims. You have made it clear that you would like there to be exemptions, but currently the road hauliers are carrying the entire burden. Can you respond to that?

The Chairperson:
I should mention that last week the Committee heard a presentation from members of the Ulster Farmers’ Union (UFU), who requested that there be a range of exemptions to the Bill more or less equivalent to the exemptions in Britain. I have sympathy with your view, and you make many of the same points made by the UFU, because we are dealing with more or less the same issue — agriculture — although in a different form. Are there exemptions in GB that apply to horticulturalists; people growing apples, or mushrooms, or whatever the case may be? Are there exemptions over there that could read across here? Perhaps it is unfair of me to ask that; you may not know.

Mr McKee:
There are exemptions for Land Rovers and trailers, etc; those would cover quite a range of vehicles. However, there are a number of details that are unclear. A landscaper, for example, may have a van with a small trailer attached; we are unsure whether that would be exempt. There are also a lot of small 7·5-ton lorries; we are not sure whether those would be exempt.

The Chairperson:
I am thinking specifically of people engaged in horticulture in Britain. What are the exemptions there? Perhaps you do not know. The UFU, last week, made a strong case for a range of exemptions for people engaged in farming. Are there a number of exemptions in Britain that could simply be applied here, or, if not, why should the law be different here? Take some time to think about that, and if there is any information that you can offer, please do.

Mr Boylan:
That is the point that I was making. You have mentioned apple growers working eight weeks a year, and so on. Have you thought about the issue of exemptions mentioned by the Chairman?

Mr Eve:
We have discussed exemptions. Primarily we would like to see a total exemption for the local horticulture industry; that would be our main concern. There are exemptions based on the distance from the operating base. I believe that, currently, operators working within 50 km of their base are exempt. If there are to be exemptions, we would like to see those transferred across. There are other minority details concerning, for example, a landscaper taking topsoil to and from sites. I think that there is legislation being passed by the EU; topsoil is currently classed as a waste product.

The Chairperson:
That is the responsibility of the Northern Ireland Environment Agency (NIEA).

Mr Boylan:
You mentioned enforcement in your presentation, and, obviously, there is a need for more enforcement; the question is how that enforcement can be generated. We have heard a number of presentations, including from the road-haulier groups, and they are calling for more enforcement. How can that be achieved?

Mr McKee:
Do you mean how can it be financed?

Mr Boylan:
That will be part and parcel of it, if the Bill is to be passed. That issue must be taken on board as well.

Mr Eve:
I do not understand why the current enforcement officers — I think that there are 20 of them —

Mr T Clarke:
They do not understand either.

Mr Eve:
Currently, there is no effective enforcement; generating new road-haulage operational centres is not going to achieve any more enforcement.

Mr Boylan:
We are not disagreeing with you, and that is why we are challenging the Bill. There can be exemptions in place that will apply to the horticulture sector but, if there is going to be enforcement, we need to ensure that it is effective.

Mr T Clarke:
I am totally opposed to the Bill, and I do not see how it is going to do what it is meant to do. Keeping slow-moving tractors in an operating centre or charging a fee for an operator’s licence is not going to make the roads any safer; I cannot see how the Bill is going to do that. We all want to see an improvement in road safety, but every time I read the Bill I get more apprehensive. People will be charged for having a certain number of vehicles, which must be kept in a special yard, and, after someone has invested money, the Department can review that yard every five years — I have major reservations about that. I support, initially at least, the call for the agriculture and horticulture sectors to be exempt; I would go further than that, however. I think that other members of the Committee know my view.

Mr Ford:
In your presentation you talked about people who inadvertently fall within the regulations, and the Committee has great sympathy for the man who puts his neighbour’s hedge trimmings into a trailer behind a tractor. Last week, I was talking to the Farmers’ Union about what might be regarded as a red-diesel exemption; if something can be legitimately done with red diesel in a tractor then the question arises as to whether that should be exempt. It seems to me that once you start talking about landscape contractors travelling around a fair bit in 7∙5-ton lorries, then you are into a completely different style of use. Although we could all agree on the exemption for the low-key, local, tractor-based activity, the Horticulture Forum seems to be trying to make the case that the 7∙5-ton lorries used by its members are different from everybody else’s. I do not see that point.

Mr Eve:
Landscapers are part of the Horticulture Forum, but we represent —

Mr Ford:
I am looking at that particular sector and I cannot see how it can easily fall within, what could be broadly termed as, an agricultural exemption.

Mr Eve:
The landscape industry is probably more commercial than the other industries that we represent. I apologise that I keep going back to the same point, but the landscape companies that are operating perfectly legally today and are maintaining their vehicles, generally tend to be small companies. The cost of the licence is relatively OK; however, the issue is the administrative burden on those small companies and the bureaucracy that comes along with that licence.

Mr Ford:
Within half a mile of me there are two businesses in adjacent yards: one is a landscape contractor who employs four or five men; the other is a single-manned meal and fertilizer business who does a lot of haulage on his own account. Why should the landscape contractor be exempt when the fellow carting meals and manures is clearly not going to be exempt?

Mr Eve:
Regarding the chap who is carrying the meals and manures, that is his daily haulage business, Monday to Friday. Generally, a landscape contractor — if he is sowing out a lawn, pruning a bed or building a deck at the back of somebody’s house — is not a road haulier.

Mr Ford:
Nonetheless he is at times hauling quite significant loads in a vehicle of substantial size. If he were merely running a tractor around the townland, I could see what you are talking about.

Mr T Clarke:
Surely, the authorities have a comprehensive list of all vehicles. If enforcement procedures in the past were right, you could go to any vehicle and carry out a spot check. An MOT or PSV is only as good as the day you get it — we are all aware of that. If you drive the vehicle down the road and something falls off it, and if you take it back in again, it will not pass the PSV or MOT test. A proper enforcement regime in Northern Ireland should have a database and be able to check those vehicles. If vehicles are not roadworthy, they should be stopped. However, operating centres are created to provide some other form of mechanism. That is totally wrong. The mechanism is already there. An MOT or PSV certificate is accurate only for the day of the test. There is nothing to prevent enforcement officers from spot-checking vehicles. How often have any of us been stopped on the road within the last few months or have witnessed spot checks on lorries? Yet, here we are, bringing in a Bill to try to —

The Chairperson:
I hear what you are saying, Mr Clarke, but I am anxious to clarify one point. We all know that there are different people involved. The people in the agriculture sector — represented by Mr Clarke — are only one category. However, to tease out Mr Ford’s point, we all know people who are engaged in laying lawns, cutting, clipping, and so on, and we all know that trailers are attached to small lorries or vans for those operations. You can clearly see that there is a distinction between those two types of operation. We are trying to establish whether there is some sort of clear read-across that is consistent. We will ask the Department about that, and if it can supply us with that detail without too much difficulty, so much the better.

I like what we are hearing from the Horticulture Forum because you represent an interest that is slightly different to all the other cases presented to us. I want to know how this aspect has been handled in Britain.

Will you clarify for the Committee your response to Mr Ford’s question about people involved in landscaping, and so on?

Mr Eve:
The Bill has been driven by the haulage industry. The average landscape gardener is not a haulage company and should not bear the same burden of administration that hauliers pay for running lorries. To turn that around, if another 20,000 or 25,000 operators’ licences are issued, those companies may legally haul goods on the road. That is probably not good, competitively, for the haulage industry.

The Chairperson:
I do not think that that point follows. Because those firms are defined as such does not mean that they will engage in the same activity as the freight people.

Mr Eve:
They could, though.

The Chairperson:
The basis of your argument until now has been that they are doing something different to the freight companies.

Mr Eve:
Yes; that is why I say that the current situation should not change. We do not see why growers of mushrooms, apples or vegetables, or landscape gardeners should be brought under the same umbrella as the haulage industry.

The Chairperson:
I accept that point. However, we are teasing out the point, and we need a little more —

Mr Ford:
The argument that Mr Eve has just made could be made by anyone hauling goods on his own account. The point of the Bill is to bring those hauling goods on their own account under the same licensing regime that those who do so for hire or reward are already under. That is my difficulty. Certain types of vehicles could be exempted: a slow-moving tractor, involved in agricultural operations and using red diesel may be identified as distinct. However, a certain section of your members’ vehicles are no different from those operated by others who come within the scope of the Bill That is assuming that the Bill goes ahead — Trevor may kill it off completely.

In those circumstances, I am trying to see how you can create a case for all your members, as distinct from those who seem to be quite close to what is being done by other people who come within the scope of the Bill.

Mr Eve:
We need to go back to our industry, back to the Horticulture Forum.

Mr Ford:
When you have another paper, please send it in.

Mr T Clarke:
There is another way to ask that question, Chairman.

The Chairperson:
Is this a follow-up question?

Mr T Clarke:
Yes. David asks how the distinction will be drawn. You could turn the question around. The figures from the 2005 road freight compliance survey show that some 44% of vehicles were not roadworthy; 18% were guilty of tachograph/drivers’hours offences; 2∙4% of loads were overweight; motor tax offences were running at 3%; and 2% of drivers were not properly insured. How will the Bill change that?

Mr Ford:
You will need to ask the Department that question.

Mr T Clarke:
I look forward to that.

Mr Ford:
Given that the Assembly approved the Second Stage of the Bill, I thought that we had accepted its premise.

The Chairperson:
We have a long list of questions to ask officials from the Department, including the enforcement officers who will give evidence to the Committee after this session. The Horticulture Forum representatives are welcome to stay to hear their contributions.

Mr Beggs:
The Bill has appropriate balance. Do you want a blanket exemption for the horticulture industry? Multimillion-pound companies such as Emerald Lawns and Monaghan Mushrooms, although not in our jurisdiction, have a large number of employees who transport goods by road every day. Do you accept that there is a risk associated with carrying heavy goods? Do you accept that a blanket exemption for your industry is not feasible because the risk is there?

Mr Eve:
The companies that you mentioned use HGV lorries.

Mr Beggs:
If there were an exemption for the entire horticulture industry, that would apply to them. Is that what you are asking for?

The Chairperson:
I do not think that that is what they mean.

Mr McKee:
No. Of course horticulture companies that use HGV lorries should be subject to the legislation.

Mr Beggs:
How will that distinction be drawn?

Mr McKee:
All lorries that weigh 7·5 tons or less should be exempt. Vehicles that require the driver to hold only a normal driving licence should be exempt. However, vehicles that require the driver to hold a HGV licence should be subject to the new legislation.

Mr Boylan:
I want to come back to the matter of enforcement and road safety — and I thank Mr Beggs for introducing an all-Ireland element to the discussion; it saved me from doing so. Road hauliers feel that they are carrying the burden of enforcement. We must strike a balance. Some of the points that you have raised about exemption have merit. Overall, we must address that issue as well as the section on enforcement.

Mr Eve:
Given the size of the horticulture industry, it will not generate much revenue under the new legislation. I would have thought that the other industries that you are going after would make up the bulk of your finances.

Mr Boylan:
In your case, you are fighting for your members.

The Chairperson:
Mr McKee, Mr Eve, thank you very much for your time. You are welcome to stay to hear evidence from the Department. If you have any further information please forward it to the Committee.

I now welcome Bernie Cosgrove, John Martin and Richard Lee from the Department of the Environment’s Driver and Vehicle Agency. Thank you for attending. Obviously, you did not hear what was said beforehand. It is a pity that you were not present to hear the issues that members raised. Would you like to start your presentation?

Mrs Bernie Cosgrove (Department of the Environment):
First, I apologise on behalf of Brendan Magee, chief executive of the Driver and Vehicle Agency, who is unable to be here because he is out of the country on business. I thank you for inviting us to appear before the Committee.

We have scrutinised the Goods Vehicles (Licensing of Operators) Bill closely. We broadly support the enhancements and measures that the Bill will introduce, particularly in levelling the playing field between hire-and-reward operators and own-account operators. The Bill will also give us additional enforcement powers to tackle non-compliance in the industry.

The Chairperson:
Is that the end of your presentation?

Mrs Cosgrove: 
We are willing to answer any questions that members may have.

The Chairperson:
It is a pity that you were not here earlier. If you had been, you would have heard representatives of the industry expressing their concerns about enforcement.

Mr T Clarke:
I will go straight for the kill: what difference will the Bill make to enforcement practice?

Mr John Martin (Department of the Environment):
The Bill will give us additional enforcement powers in both the hire-and-reward sector and the own-account sector. The own-account sector is not licensed, and, therefore, it is not subject to the same regulatory requirements as the hire-and-reward sector. The Bill will enable us to acquire more information from the own-account sector.

The Bill also proposes to introduce a requirement for operators to keep maintenance records. Currently, operators are not required to keep maintenance records for their fleet, and we have found that quite a few operators do not maintain their vehicles. Indeed, our fleet compliance survey indicated that upwards of 40% of those vehicles were not roadworthy. The new requirement means that operators will be obliged to keep records and ensure that vehicles are maintained throughout the year, rather than just once a year for the vehicle test.

The current provisions for the suspension and revocation of operators’ licences — as outlined in the Transport Act ( Northern Ireland) 1967 — are too weak to properly regulate licensing. The Bill proposes to bring our licensing into line with that in GB, where the traffic commissioners have additional powers to regulate the industry in cases of non-compliance.

Mr T Clarke:
Do you feel that the Driver and Vehicle Agency is adequately resourced to tackle enforcement?

Mr Martin:
No, we are not adequately resourced to deal with enforcement. The problem is a combination of a lack of sufficient resources and the inadequacy of the regulation regime.

Mr T Clarke:
Forgetting the regime for one moment, are you adequately resourced to enforce licensing in Northern Ireland?

Mr Martin:
Currently, as we stand, no, we are not.

Mr T Clarke:
You are not adequately resourced at the moment. You will be even more inadequately resourced if you are granted more powers; the problem will become twofold.

Mr Martin:
We are trying to align our regime with the GB regime. We bid for additional resources for goods-vehicle enforcement under the comprehensive spending review (CSR) process last year. Those resources would enhance our ability to deal with some of the enforcement issues, but they have not come into play yet. However, resources alone are not enough; we need a much tighter regulatory regime to deal with people who continually ignore the legal requirements.

Mr T Clarke:
The industry is concerned that current enforcement is inadequate. I do not know whether that concern was raised today, but I have certainly heard it in the past. We should not be going from A to Z so quickly. People who use the roads have said that the enforcement is inadequate. Indeed, I cannot remember the last time that I saw vehicles being stopped. I am greatly concerned that enforcement is not adequate at the moment. We are trying to get to the point at which it is excellent, but we do not even have a good standard of enforcement.

Following on from that, there is the issue of vehicles that are not roadworthy. We have statistics here about illegal operations: 44% of vehicles were not roadworthy; 18% were guilty of tachograph offences; 2· 4% were found to be overweight. What difference will the Bill make to those statistics? If enforcement is not happening at the moment, that will not change.

The Chairperson:
I wish to have a little more clarity about that issue. What potential percentage increase is there likely to be in the number of vehicles that fall within the remit of the Bill?

Mr Martin:
The own-account sector, which is unlicensed, makes up approximately 75% of the fleet in Northern Ireland. The other 25% comprises the licensed fleet — the vehicles that fall within the licensing regime. We have been working with our counterparts in GB. The level of non-compliance is much lower in GB, but that is not solely because of the enforcement action that is taken at the roadside, where the vehicle is stopped and the person prosecuted. There is a much more robust licensing regime in GB to back up enforcement. That means that if people are found to be non-compliant on a regular basis, they will lose the right to carry out their business as a licensed operator. It is a combination of effective roadside enforcement and a licensing and regulatory regime to back that up.

The Chairperson:
To go back to my point, what is the anticipated increase in the number of operators that will fall within the remit of the licensing regime set out in the Bill? Is it a 75% increase? You mentioned a 75-25 split. Do you anticipate a 75% increase in the number of enforcement officials? We have heard today from one area of the industry that there is currently no effective enforcement here.

Mr Martin:
We do not envisage a 75% increase in enforcement staffing. Seventy five per cent of the fleet does not fall within the licensed sector. However, those vehicles are still used on the roads, and we will continue to stop those vehicles in order to determine their roadworthiness and vehicle weight. We still encounter those vehicles at the roadside despite the fact that there is no licensing regime to regulate them. We stop those vehicles and deal with issues as we encounter them.

Mr I McCrea:
What resources are currently in place? How many enforcement officers are there, and how many should there be?

Mr Martin:
The total staff complement of the section is 28. Under the CSR process, we bid for resources for an additional 33 members of staff. Not all of those staff would be dedicated to goods vehicle enforcement, but we are talking about a 100% increase in the staffing complement in order to put us on a par with our counterparts in GB. The bid was approved in its entirety because of the issues in the industry.

Mr Gallagher:
We are all trying to improve vehicle safety on the roads. The problem is that there may be an operator who regularly has four or six heavy vehicles on the roads that are not compliant, and which pose a risk to the safety of other road users. We are trying to arrive at an agreement about a Bill that will deal with such problems and achieve the objective of vehicle safety.

You propose to include in the new legislation certain operators who might do some seasonal lawn mowing or hedge cutting, usually for a very small return. Those people could now be regarded as operators and as running operator centres. In addition, there is the licence, the costs, and the additional bureaucracy involved in complying with the new arrangements under discussion. The range of operators covered by the Bill seems unfair. What exemptions might be possible, and what is the situation in Great Britain? Is there anything that we might learn from the experience in Great Britain?

Mr Martin:
From our perspective, and from our knowledge of the GB licensing regime, exemptions are provided that are worth considering. However, we want to ensure that there is a level playing field for anybody who operates a vehicle on a commercial basis to carry goods for either hire and reward or for their own benefit. The procedures could be worked back from the starting point to see whether certain sectors of the industry would be worthy of an exemption. However, the underlying requirement is that, irrespective of whether people are in the licensing regime or not, they must still maintain their vehicles and comply with all the other legal requirements.

Difficulties would arise if vehicles or operators were outside the licensing regime. What action could be taken against them to allow them to continue to operate within that sector? In other words, if someone is continually non-compliant and completely ignores the legal requirements about roadworthiness, etc, that could cause danger to other road users, should that person be allowed to continue in the business? That is where the weakness is in the current system: if people completely ignore the legal requirements there are no effective licensing sanctions that can be used against those operators to take them out of the industry. The difference between the system here and the system in GB is that the authorities there have the autonomy to suspend or revoke an operator’s licence. That is why the GB’s level of non-compliance is much lower.

Mr T Clarke:
I disagree, John. You referred to a level playing field and the weakness in the system. The weakness lies with the enforcement. The current legislation allows for a proper enforcement regime, and there are fines to support that. However, the DVA is not conducting its role properly. It is unfair to blame the industry because it is not comparable to that in England.

With respect to the level playing field, the land border with the Republic is another difference between Northern Ireland and England. Operators in the Republic can come and exploit Northern Ireland because the Republic will not have the same licensing regime as it is hoped to introduce here. You want fairness in the system and yet you are creating unfairness. The operators here will be at an unfair disadvantage to those in the Republic of Ireland.

The Chairperson:
The point about the relocation of industry was raised before.

Mr Martin:
In respect of Mr Clarke’s point about the enforcement responsibilities, the unfortunate fact is that when we prosecute people, the fines may not necessarily be a deterrent. We have lists of operators who have been prosecuted on countless occasions — well into double figures — but those who operate those types of fleets seem to view the fines as a running expense and a cost that must be borne. Some operators have a horrendous list of offences, both in the own-account sector and, maybe fewer in the hire-and-reward sector, but, obviously, effective enforcement has not been able to deal with that. We are taking cases to court and getting prosecutions. We are taking unroadworthy vehicles off the road. However, that is not acting as a deterrent.

In our discussions with GB, we are asking why that is the case, and why the operators continue to operate despite the fact that we are taking them to court regularly. What is missing in Northern Ireland is an effective licensing regime to back up enforcement at the roadside. Quite a number of people have been prosecuted for a lot of offences through our process of prosecuting at the roadside, but it is not acting as an effective deterrent. People’s attitudes to compliance will change if the prosecutions are fed into the licensing regime and result in the suspension or revocation of a licence.

Mr T Clarke:
Chairman, can we be provided with the statistics for the enforcement cases that have been taken in the past five years, the convictions, and the number of those that were duplicate or triplicate?

The Chairperson:
We can certainly get that.

Has the relocation of industry come up as an issue — or, perhaps, I should ask the Planning Service about that? Through your correspondence or any of your dealings with the industry, have you been given cause to believe that there will be displacement of industry as a result of potential enforcement?

Mr Martin:
The hire-and-reward sector is subject to the enforcement regime from a licensing perspective and on the roadside. We have not seen any great displacement of the industry to Southern Ireland as a consequence of that. It is not necessary to be based in a particular location to be part of the hire-and-reward sector, but people who run quarries or building-supply businesses in the own-account sector cannot really operate from another jurisdiction.

The Chairperson:
They can operate from another jurisdiction. We heard this argument before, particularly in relation to issue of rates and industrial deregulation. Businesses, especially in Derry, can just go down the road to one of the big industrial estates in Letterkenny. That is business; that is how those businesses can operate to cut costs.

Mr Martin:
I am not saying that it would not be a problem, but, up to now, we have not seen any evidence of that, and I do not know whether it will happen. The hire-and-reward sector is licensed currently, and we have not seen much evidence of that. I cannot predict whether it will be the case in the future.

Mr Boylan:
The question of how this will be enforced keeps raising its head. You are talking about 75%; but there is an issue about the 3·5 ton vehicles. A large percentage of those vehicles will be operating from home. There should be a level playing field, but, perhaps, tractors should be exempt. If this legislation progresses, somebody will have to pay for it, but it should be the same across the board. How should we deal with the actual enforcement? Will there be a database of the people who have paid? Will there be a manned mobile unit on the side of the road? We are talking about 3·5-ton vehicles and big vans that are operating from homes. How will you enforce the legislation and ensure that every operator and vehicle is licensed.

Mr Martin:
Under the proposed regime, vehicles up to 3·5 tons — the like of builders’ vans, for instance — will be exempt.

Mr Boylan:
I know that, but there are bigger vans than 3·5-ton twin-axled vehicles. How will the issue be addressed, realistically?

Mr Martin:
Recently, we purchased new equipment, including automatic number-plate recognition equipment. Four or five years ago, our main focus was on checking high numbers on vehicles. However, we found that we were focusing more on checking vehicles than on checking vehicles that had offences. We reduced the number of vehicles that we check and try to focus our attention on vehicles that are non-compliant; we target our resources at the most non-compliant.

Over the past 12 to 18 months, the number of non-compliant vehicles that we have detected has increased, despite the fact that the overall number of vehicles that we checked had reduced dramatically. The percentage of the vehicles that we have seen has increased as well. We are more effective now in targeting the non-compliant operators. Any information or intelligence that we have on a non-compliant operator is fed into our database, and that enables us to target the vehicles as they travel along the road.

Mr Gallagher:
My point about providing details on vehicles that had been apprehended has already been raised.

Mr Beggs:
The purpose of the legislation is to try to improve road safety. That is the main reason why the legislation is being proposed. Mention was made of potential displacement in an attempt to avoid some aspects of the legislation. Are you talking to your counterparts in the Republic of Ireland in order to avoid the risk of an increased amount of accidents or poor vehicle maintenance because of the difficulties that could arise with operators in that part of the world.

Mr Richard Lee (Department of the Environment):
We run a lot of joint operations, both with the Road Safety Authority in the South, and with the Garda Síochána. We have regular contact with those bodies; it is not the case that we sit alone and do not have intelligence from our colleagues in the South.

Mr Beggs:
Is similar legislation being proposed in the Republic of Ireland?

Mr Lee:
I am not aware that similar legislation is being proposed on operator licensing.

Mr Beggs:
Therefore, a single operator who wanted to avoid the legislation could displace his location.

The Chairperson:
An operator could, for instance, move from Newry to Dundalk.

Mr Beggs:
Given that the legislation is concerned with road safety, are you pressing that issue with your opposite numbers in the Republic of Ireland?

Mr Martin:
Colleagues in the Department of the Environment have had several meetings with our counterparts in Southern Ireland to discuss that. A few more meetings have been scheduled to try to tease out the issues and identify whether an enhanced regime will be introduced in the South.

The Chairperson:
I thank the witnesses for their time.

The next briefing will be from the Department of the Environment’s Planning Service on the Goods Vehicles (Licensing of Operators) Bill. I welcome Mr Simon Kirk, who has been sitting at the back and taking in everything.

Mr T Clarke:
Chairman, the need for a level playing field has been mentioned. The Department has provided a comparison of the fees for Great Britain, Northern Ireland and the Republic of Ireland. A licence for an operator with 10 vehicles costs £2,381 in Great Britain, £3,150 in Northern Ireland and £772 in the Republic of Ireland. That is, supposedly, a level playing field.

The Chairperson:
Mr Kirk, thank you for your attendance today. A number of issues were raised initially on the implications for planning. Will you provide a brief overview of that?

Mr Simon Kirk (Department of the Environment):
The Planning Service would only be involved if someone proposed to establish a new haulage business, or if they used a site that was not authorised. Once a haulage operator is operating from an established centre with the benefit of planning permission, or because it has established-use rights, there is no issue for the Planning Service.

Mr T Clarke:
Chairman, can we cut to the chase? That is nonsense.

The Chairperson:
I appreciate that Trevor is anxious to speak, but we will wait until Mr Kirk is finished. Please continue.

Mr Kirk:
If an operator were to park a vehicle at a dwelling overnight, that, on its own, would not constitute development.

Mr T Clarke:
Can I have that in writing? A lot of people would love to have that written down.

The Chairperson:
You will have it in writing, because the Committee meeting is being covered by Hansard.

Mr T Clarke:
Brilliant stuff.

The Chairperson:
Trevor, please let us hear what the man has to say.

Mr Kirk:
That is the essence of what Planning Service has said. If a haulage business is operating with the benefit of planning permission, there is no issue for Planning Service.

Mr T Clarke:
That is missing the point.

The Chairperson:
I know, but do you have something further to add?

Mr Kirk:
No, I have nothing further to add.

The Chairperson:
We will hear what the point is.

Mr T Clarke:
Under the new legislation, a small operator with a medium-sized van that is 3·5 tons would need an operating centre. What if he is operating from home? What will the Planning Service’s view be on that arrangement?

Mr Kirk:
The parking of a vehicle —

Mr T Clarke:
No, he is running a business from his home. The operating centre is establishing his business from his residential property. What is the Planning Service’s view on that?

Mr Kirk:
There are certain instances in which a person can run a business from home — as long as the principal use remains as a dwelling house and no material change has been made to part of the curtilage or the dwelling. Parking and running a vehicle from home does not constitute a business.

Mr T Clarke:
Chairman, could I get that in writing? I want that in writing from the Planning Service, because that is utter nonsense. I know of cases in which owners of small businesses have run businesses from their homes, and the Planning Service has taken enforcement cases against them to prevent them from doing so. They have had to move their business and establish proper premises. Therefore, what you are saying today totally contradicts what has happened in the past.

The Chairperson:
Mr Kirk, let me put our concern to you. Say, for example, a self-employed man who works in the haulage business parks his lorry at the side of his house. At the moment, all he is doing is parking his lorry at the side of the house and perhaps writing out a few invoices from inside the house. The concern is that, under the provisions of the Bill, his home could be classed as a business.

Mr T Clarke:
It would be classed as his operating centre.

The Chairperson:
Yes, it would be classed as his operating centre. Therefore, in the Planning Service’s eyes, the use of his home would change: it would no longer be a place to park the lorry but an operating centre or a business. Can you give the Committee an assurance that that would not happen?

Mr Kirk:
We are talking about a material change in the use of land. It is a matter of fact and degree. Simply parking a vehicle in your driveway overnight does not constitute —

Mr T Clarke:
Do you see this title “operating centre”; that is an establishment. That is nonsense, Chairman.

The Chairperson:
Hold on a minute, Trevor.

Mr Kirk:
It is not nonsense.

Mr T Clarke:
It is utter nonsense.

The Chairperson:
Hold on just a wee minute. I want to get this matter clarified; just bear with me a minute.

Mr Kirk:
Sorry, Mr Chairman.

The Chairperson:
Under current planning law, that is the case — parking a vehicle at the side of your house is no problem. The issue being raised is that, under the proposals in the Bill, the house would become an operating centre, and that that could be interpreted as a business as opposed to a private residence. Thus, that proposal would have important consequences. The Committee is seeking an assurance from the Planning Service and the other wing of DOE that the term “operating centre” will not automatically be interpreted as a business. That is what we want clarified.

Mr Boylan:
Let me put it another way — and Simon, I have your notes. A large number of vehicles are over 3·5 tons. A driver may park his vehicle at his house, offload the goods, put them in a garage overnight and reload them in the morning. Where does the Planning Service stand on that issue? Would it class that activity as operating a business from home? Clearly, that could happen. From what you have told us, I understand that it is alright if the driver leaves the goods in the vehicle overnight and drives away the next morning. However, on some occasions, the person may have to offload the goods in the garage, yard or wherever. In those cases, would they need to register a change of use of their building or garage under the terms of the new legislation?

Mr Kirk:
It is sometimes difficult to establish that a change of use has occurred. It is a matter of fact and degree. In a case where goods are occasionally being taken off the vehicle and put in the garage, it might be concluded that change of use had not taken place.

I must point out that anyone who is subject to enforcement action will clearly have the right to an appeal before the Planning Appeals Commission. The first ground on which anyone will challenge us is that the development does not require planning permission. If we say that a man is just parking a vehicle at the side of his house, but we have decided that there has been development because there is some other licensing operation, the appeal would fall.

Mr T Clarke:
I declare an interest in this issue, because I had an enforcement case taken against me for parking cars in my yard. I lived in the dwelling for eight and a half years and parked cars in the yard for eight and a half years, but an enforcement case was taken against me for doing so.

The Chairperson:
What was the case based on?

Mr T Clarke:
I was parking vehicles in my yard that were then taken on to auction houses, but what is the difference between that and someone using a van for their business and parking it at their house? It is still an operating centre.

The Chairperson:
We need written clarity from Planning Service in the context of the operating centre and the potential for it being interpreted by a planning official as a meaningful change of use from a residence to a business. That is the key issue.

Mr Kirk:
If someone is living in the house, it remains a dwelling. Are you asking what would happen if part of the curtilage changed? In other words, what would happen if there were a partial change of use?

The Chairperson:
No, I am not asking that. We have been involved with councils long enough to know the situation. If another wing of the Department decides that a dwelling is an operating centre for the purpose of that business, somewhere along the line, a planning official could interpret that as an operating centre for business, when it is supposed to be residential. That would bring people into an area where they do not want to be. Therefore, that issue must be verified.

Mr Boylan:
It is vital to clarify whether goods stored on a property would definitely mean that the building is being used for a business. The issue relates to the operator’s licence and the need to have an operating centre. I would like you to clarify the issue relating to storage and movement of goods from operating centres.

Mr Kirk:
I will clarify that. I can point to pages of case law, but it will very much depend on fact and degree, the amount of times that it happens, the size of the goods and where they are being stored.

The Chairperson:
I appreciate all that. The nub of the matter is that it will boil down to some planning official deciding how an operating centre impacts on the interpretation of whether a property is used as a dwelling.

Mr Kirk:
If the Bill becomes law, we will clearly have to brief and give guidance to our staff.

Mr T Clarke:
Not guidance, because guidance is interpreted in different ways by different councils. Guidance does not work for Planning Service, because the Minister sent guidance notes to Planning Service relating to Planning Policy Statement 14 (PPS 14), but it did not understand them either, because everyone interpreted them differently. Guidance does not work.

The Chairperson:
The Committee needs clarification on the key issue of the operating centre and the potential for impact in interpretation of planning law, from tipping the balance between residential and business. Committee officials will be in touch with departmental officials on the matter. That is really the nub of the issue.

Mr Kirk:
I would like to make one final point: even if it was a business, if it has been established for a period of time, it is lawful.

Mr T Clarke:
The issue also relates to how the Department would count that.

Mr Kirk:
It is simple. It is four years for a building and 10 years for change of use of land.

Mr Boylan:
There will potentially be numerous businesses operating in the countryside because of this Bill

Mr T Clarke:
Is it 10 years for a business?

Mr Kirk:
No, it is four years to enforce against operational development of a building and 10 years for change of use of land.

Mr T Clarke:
I parked vehicles at my yard for eight and a half years, and I still lived in the property.

The Chairperson:
I am sure you have a fair idea about the issue here, Mr Kirk. We would be grateful for written clarity on it, but I am not sure whether you can provide it in isolation; you will certainly have to liaise with your departmental colleagues on the operating-centre issue. Thank you for your time.

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