Decision

Impounding: Written decision regarding an impounding by the Traffic Commissioner for Wales for PYTHIA s.r.o.

Published 16 November 2022

0.1 In the Welsh Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Impounding Hearing: In respect of the application by PYTHIA s.r.o. (“the applicant company”) for the return of VEHICLE REGISTRATION NUMBER: NO389CF

2. Background

On Thursday 23 August 2022, vehicle NO389CF, a Slovakian registered vehicle, was stopped and detained by the Driver and Vehicle Standards Agency (“DVSA”). The background to the detention is set out in the witness statement of DVSA Traffic Examiner (“TE”) Jonathan Woodward (pages 17 to 42 of the Hearing Brief) and, in summary, is as follows:

• The vehicle, an articulated tractor unit towing a semi-trailer laden with toilet paper, was stopped at the A494 Ewloe checksite in North Wales on 23 August 2022. The driver, Mr Petranic, confirmed that the vehicle was being used in connection with the applicant company’s business and was on a journey from Flint to Bridgend. The driver was unable to produce the load paperwork for loads carried into or around the UK since the vehicle had entered the country. He was only able to produce details for the load he was carrying.
• Given the length of time the vehicle had been in the country and the fact that no paperwork was available for loads, TE Woodward considered that a cabotage offence may have been committed. He spoke to Anthony Hulme, director of the applicant company, to request full copies of the paperwork to enable him to assess cabotage compliance. Mr Hulme stated that there was no point because cabotage had been breached. He stated that the vehicle should have left the UK on Sunday but didn’t because it was needed for work. Mr Hulme detailed three loads which were internal cabotage movements, These were; (1) A load from Gateshead (2) A load to South Wales (3) A load taken to Maidstone
• TE Woodward pointed out this was in excess of the permitted cabotage requirements and this was acknowledged by Mr Hulme.
• It was noted that the applicant company had received a pre-impounding warning letter in May 2018 informing it that further cabotage breaches may result in its vehicles being impounded. It was further noted from DVSA records that there was a history of cabotage infringements detected during encounters with the applicant company. Cabotage infringements were detected on the following dates: 3 July 2022; 14 November 2019; 22 December 2018 and 16 January 2018. Given the history of cabotage offences, DVSA impounded the vehicle.

An application for the return of the vehicle was made by Anthony Hulme, director of the applicant company, received on 6 September 2022. The ground relied upon was that, although knowing at the time the vehicle was detained that it was being, or had been, used in contravention of section 2 of the Act, the owner (i) had taken steps with a view to preventing that use; and (ii) has taken steps with a view to preventing any further such use. The applicant company included with its application a letter of explanation from Anthony Hulme (pages 14 and 15 of the Hearing Brief). On the papers before me, I could not find the ground relied upon to be made out. In the interest of fairness, I called the application to a hearing. The day before the hearing, the applicant company provided certified English translations of Slovak documents to prove ownership of the detained vehicle.

3. The Hearing

On 29 September 2022, Anthony Hulme sent an e-mail advising that the applicant company would not be attending the impounding hearing on 7 October 2022. The hearing went ahead on that date in the absence of the applicant company.

TE Woodward attended for the DVSA. He adopted his statement, and I heard evidence from him following which I concluded the hearing and indicated that I would issue a written decision.

4. Evidence and Findings

The applicant company’s ownership of the vehicle is not disputed.

On the evidence, I find that DVSA had reason to believe that the vehicle was being used in breach of section 2 of the Act and that the vehicle was lawfully impounded.

The evidential burden is on the applicant company to prove the ground relied on for return of the vehicle, namely that although knowing at the time the vehicle was detained that it was being, or had been, used in contravention of section 2 of the Act, the owner (i) had taken steps with a view to preventing that use; and (ii) has taken steps with a view to preventing any such further use.

As the Upper Tribunal stated in the case of Van Der Gaag Transport De Lier BV v DVSA 2016/008, “steps taken” in this context means “all reasonable steps available to the owner” and “the hurdle is a high one”. It is for the applicant company to demonstrate, by way of evidence, robust systems and procedures that it has put in place which would constitute reasonable steps along with adequate explanations as to why those steps did not work in the instant case. The documentary evidence that an applicant should produce is set out at paragraph 59 of the Senior Traffic Commissioner’s Statutory Document 7 on Impounding.

The applicant company has admitted that it knew at the time the vehicle was detained that it was being used in contravention of the cabotage requirements. It has failed to satisfy me that it had taken steps with a view to preventing that use and that it has taken steps with a view to preventing any further such use.

The applicant company chose not to attend the hearing to put forward its case. The only evidence produced in advance of the hearing was the letter from Anthony Hulme included with the application form (pages 14 and 15 of the Hearing Brief) and documentation relating to ownership of the detained vehicle.

Mr Hulme failed to provide the load paperwork for all loads carried into or around the UK since the vehicle entered the country, despite being requested to do so by the DVSA. The three cabotage movements that he detailed to the DVSA exceeded the load limit specified in the cabotage legislation (two internal laden journeys within seven days of delivery of an incoming load). Mr Hulme suggests in his letter accompanying the application that this was because a driver took the wrong truck. However, even if Mr Hulme’s explanation of events is correct, the applicant company would still have been in breach of the cabotage requirements because it had already undertaken three internal movements within the UK within 7 days of having delivered the incoming load. These were apparently a load collected from Gateshead on 18 August, a load delivered to South Wales on 19 August and a load delivered to Maidstone on 22 August. Any steps taken by the applicant company to prevent unlawful use were patently inadequate, although no evidence has been adduced to demonstrate that any steps were taken by the applicant company to prevent the third of those internal movements, or indeed the fourth when the driver allegedly took the wrong truck. The detained vehicle was stopped during the fourth internal laden journey on 23 August.

No load paperwork was received by the DVSA, but TE Woodward undertook an analysis of 29 days of tachograph data recorded by both the card and the vehicle unit and compared this with ANPR data and NAS hits of the detained vehicle. His findings are fully set out in his witness statement and show that at no point between entering the UK on 13 August and being detained on 23 August could the vehicle have possibly reached or even come close to Gateshead, as claimed by Mr Hulme. If the incoming load was delivered on 15 August, as Mr Hulme states, TE Woodward’s evidence was that there were 12 collection or delivery locations subsequent to that, which would amount to 6 loads. This far exceeds what the cabotage rules allow. I accept the evidence of DVSA in this regard which contradicts the applicant company’s explanation and gives me cause to doubt its honesty and credibility. I also note that Mr Hulme was willing to make a statement in support of this application that was false regarding the number of times the applicant company has been stopped by DVSA and found to be in breach of the cabotage requirements. His explanation states “we have indeed breached the cabotage regulations on 2 occasions”, however TE Woodward confirmed that his check of DVSA records revealed that this was the 5th time the applicant company had been found in breach of cabotage requirements.

In summary, the applicant company has failed to satisfy me that it had taken steps with a view to preventing the unlawful use of the detained vehicle in breach of cabotage rules and has taken steps with a view to preventing any such further use.

5. Decision

The application to return vehicle NO389CF to the applicant company is REFUSED.

Victoria Davies

Traffic Commissioner for Wales

11 October 2022