It had not been open to the Justices to take into account any increased pollution, by the adoption by a driver of a longer route, which did not use restricted roads, when considering whether the driver had taken the shortest practicable route on restricted roads for the purpose of condition 5 to a permit issued under Art.5 Greater London (Restrictions of Goods Vehicles) Traffic Order 1995.Appeal by way of case stated against the decision of Feltham Justices on 8 July 2002 to acquit a driver employed by the Respondent ('E') in respect of the use of a vehicle in breach of condition 5 attached to a permit issued under Art. 5 Greater London (Restrictions of Goods Vehicles) Traffic Order 1995. The appellant ('R') had alleged that the driver had driven along a particular route to make up for lost time without regard to the condition of the permit which required him to minimise the use he made of restricted roads. The Justices considered that the driver had taken the shortest practicable route on restricted roads taking into account that an alternative route which did not use restricted roads was 19 miles longer and, if taken, would have contributed more to general pollution. On the present appeal R argued that (i) in reliance on Post Office v Richmond Upon Thames London Borough Council (1995) RTR 28 and TNT Express (UK) Ltd v Richmond Upon Thames London Borough Council (1994) (a) it was not open to justices to consider the extent of any diversion when assessing whether a driver had taken the shortest practicable route; (b) there were 'marginal' cases where the route taken was not the shortest route but the word 'marginal' referred only to the fact of a very short difference between the two routes; and (ii) the question of distance was the only factor justices could take into account when considering whether the shortest practicable route had been taken and therefore a consideration of pollution had not been open to the justices.HELD: (1) The extra length of the alternative route which did not use restricted roads was not a consideration open to the Justices. (2) 'Practicable' in the present context merely referred to the shortest route on restricted roads. (3) Whilst there were marginal cases the word 'marginal' related to a short distance between the route taken and any alternative shorter route. (4) The fact that a transgression was marginal went only to the issue of the penalty following conviction. (5) The Justices had failed to address their minds to the question of distance but instead had considered pollution, which consideration had not been open to them.Appeal allowed. Case remitted with a direction to convict.

[2003] EWHC 1181 (Admin)