Decision

Decision for Eastern Concrete Ltd – OF1044321

Published 1 June 2022

EASTERN TRAFFIC AREA

EASTERN CONCRETE LTD – OF1044321

1. WRITTEN DECISION OF DEPUTY TRAFFIC COMMISSIONER MR M DORRINGTON AFTER AN ENVIRONMENTAL PUBLIC INQUIRY HEARD ON 22 APRIL 2022 AT THE OFFICE OF THE TRAFFIC COMMISSIONR IN CAMBRIDGE

The variation application made by Eastern Concrete Ltd (hereinafter the “operator”), the holder of operator licence reference OF1044321, to increase the authorisation at the Fornham Park, IP28 6TT operating centre from 10 vehicles and 4 trailers to 16 vehicles and 8 trailers is granted with immediate effect. No additional conditions or undertakings are attached to licence OF1044321.

Mr Hilder, the sole representor in this case, is found not to be the owner or occupier of land that is in the vicinity of the operating centre. Unless there are material changes going forward then this determination will remain.

In the alternative, I have found and determined that there are no activities undertaken by this operator at the operating centre which fall within my jurisdiction that are capable of prejudicially affecting the use or enjoyment of the land which Mr Hilder owns or occupies.

2. The law

My jurisdiction, and therefore my powers, that relate to environmental hearings such as this come from the Goods Vehicles (Licensing of Operators) Act 1995 and the Goods Vehicles (Licensing of Operators) Regulations 1995 and the caselaw that has developed over the years. This is all summarised and explained in Statutory Document Number 4 issued by the Senior Traffic Commissioner.

In relation to the idea of an “operating centre” I need to explain what that actually is. The definition of an operating centre is the place where vehicles specified on the operator’s licence will normally be parked when not in use. The term “normally” means for the majority of the time. Therefore, an “operating centre” is the area defined on the plan submitted to a Traffic Commissioner where vehicles will be parked up, for the majority of the time, when not in use.

Valid “representors” are people who are the owners or occupiers of land within the vicinity of the operating centre who raise environmental grounds that fall within the jurisdiction of the Traffic Commissioners based upon actual or proposed activities that are capable of prejudicially affecting the use or enjoyment of their land.

3. My jurisdiction in cases such as this

I am extremely limited in what I can take into account, and therefore what I have power to determine. I am only concerned with the actual operating centre itself and where any egress/exit to or from the operating centre first joins a public road. Once a vehicle is on a public road (a road that is maintained at public expense) it falls outside of my jurisdiction and into the jurisdiction of the local authority responsible for maintaining that road.

I can only take into account the vehicles that are authorised under the operator’s own operator’s licence for the Eastern Traffic Area. That means I have no jurisdiction over third party vehicles or vehicles specified on an operator’s licence held by this operator in a different traffic area were such a licence to be granted in the future.

I have no jurisdiction over the suitability of the surrounding road network; that is for the local authority responsible for that road network to decide.

I have no jurisdiction over the general use of the site. That means activities undertaken there by Eastern Concrete Ltd such as general work concerned with the production and storage of concrete are not part of my jurisdiction. Likewise, I have no jurisdiction over the buildings on the site.

I have no jurisdiction over the lighting of the site when the purpose of that lighting is for the general use of the site itself as opposed to the specific use of the operating centre.

I have no jurisdiction over issues that relate to planning permission save when the land in question has never been used as an operating centre before.

I do have jurisdiction in relation to the operation of vehicles that are normally kept at the operating centre for activities within, or directly linked to, the operating centre which includes loading, unloading, maintenance, washing, lighting, noise generation, dust produced, fumes generated and vibration caused by the operation of those vehicles.

4. Background

The operator made a complete variation application to increase the number of vehicles and trailers operated from the Fornham Park operating centre. That land has been used as an operating centre for decades. No statutory objectors came forward despite the clear advertisement in the local press and despite the application being published by the Office of the Traffic Commissioner. Two local residents came forward with representations. One was ruled invalid and the other, Mr Hilder, made a representation that on the face of it satisfied the statutory test that representors must comply with. His representation was therefore, on the papers, ruled as valid. 2. Despite efforts made by the environmental team at the Office of the Traffic Commissioner no solution was found to balance the concerns raised by Mr Hilder and the commercial interests of the applicant operator.

As a result, the case was then listed for a Public Inquiry on 22 April 2022. Before that hearing I undertook my own site visit on 21 April 2022. That was conducted on my own. I spent about 40 minutes in the middle of the afternoon (therefore in daylight hours) looking at the entrance/exit of the overall site where it joins the public road (the B1106). I saw regulated vehicles enter and exit the site and other road users going up and down the B1106. I listened to the ambient noise and the noise of traffic including regulated vehicles. I then moved to just outside Mr Hilder’s property which is down a small side road off the B1106. listed to the noise in front of that property for about 10 minutes.

Next, I walked up the B1106 from that side road and noted that the hedge on both sides of the B1106 is about 8-9 feet tall. About halfway along that walk (from where Mr Hilder’s property is situated) towards the entrance to the overall site was a 5-bar gate. I climbed onto the gate and looked right across a field to Mr Hilder’s property. It was hard to see his property because the back of it is obscured by a hedge and some large trees/bushes. I climbed over the gate and into the entrance to the field. I then looked to my left and noted that there was a hedge that ran parallel to the hedge at the back of Mr Hilder’s property across the field. On top of that hedge, all the way along it, were established adult deciduous trees. To the left of that hedge was another field and, in the distance, at the end of that second field, there was another hedge with large and what appeared to be well established bushes and vegetation growing on it. Behind that I could just make out a tall and substantial bund.

Behind that bund I could just see the tops of some tower-like buildings. I then looked back towards the rear of Mr Hilder’s property and made a mental note of the distance between that property and the bund and the noises that I could hear whilst in the field halfway between the bund and the rear of Mr Hilder’s property.

At no point, whether standing on the top of the 5-bar gate or whilst in the field, was I able to observe any vehicle within the overall site let alone the operating centre. Whilst in the field, save through the gateway, I was not able to see any traffic going along the B1106 save the tops of the large goods vehicles and their trailers given the size and density of the hedge that ran along the B1106.

I add that the weather conditions for my site visit were as follows: bright sunny day with about 1 okta of cloud, dry and virtually no breeze. Given the time of year, most of the trees and bushes were coming into leaf but some were still bare.

5. The Public Inquiry on 22 April 2022 at the Office of the Traffic Commissioner in Cambridge.

Present for the operator were Mr T Baker (Director) and Mr D Lomus (Transport Manager). Also in attendance for the operator was Mr G King (Noise Consultant). Representing the operator was Mr Ridyard, specialist road transport law solicitor.

Mr Hilder attended on his own and was not represented.

Having outlined my legal position I, exceptionally, allowed Mr Hilder to take part in the hearing over and beyond the normal input that would take place in a hearing such as this. Representors are not a party to the proceedings, they are a witness, and therefore by right are not entitled to cross question the operator or its witnesses save through myself as the presiding commissioner. However, in this case I allowed Mr Hilder to fully participate, which he did.

I heard oral evidence from Mr Baker, Mr King and Mr Hilder. I allowed Mr Hilder to question everyone. I then heard closing submissions before reserving my decision.

6. Findings and reasons.

In the history of this site, and specifically this operating centre, I understand that I am the only commissioner to have undertaken a site visit. Mr Hilder confirmed the same. That gives me a significant advantage in determining this case.

From the observations I have already made from my own site visit the following findings are made after also carefully considering all of the evidence that was before me. Where necessary, I have applied the civil standard of proof (the balance of probabilities) to the evidence that I considered to be relevant to the issue in dispute.

The land in question is a long established operating centre. As a result, I am not concerned with any issue that relates to planning permission by want of regulation 15(c) of the Goods Vehicles (Licensing of Operators) Regulations 1995.

Mr Hilder’s property is 527 metres (as the crow flies) from the land in question.

I am only concerned with the vehicles specified on this operator’s operator licence in the Eastern Traffic Area. All cases are decided on their own individual merits and as a result I am not in any way required to take into account other operators and restrictions that may, or may not, be placed on their operator’s licence.

This operator has held an operator’s licence since 2005. There have been no compliance issues in that time that I am aware of. That level of compliance gives me confidence that I can trust this operator to do what it says it will do in all matters relating to operator licence compliance.

The general hours of work undertaken by the operator are 0700 to 1800 hours, Saturday work is generally finished by 1400 hours and there is no work on Sundays. Emergency work is undertaken outside of those hours as and when required.

The granting of this application will not make a material difference to the number of vehicle movements in and out of the operating centre because by the grant of the extra authorisation vehicles that normally travel to and from the operating centre at Fornham Park from other operating centres used by the operator will then be based at Fornham Park thus each negating the two vehicle movements made daily to and from Fornham Park at the start and end of the working day.

The operating centre is within the overall site occupied by Eastern Concrete Ltd where there was, and is, already work being undertaken that is unrelated to the operation of regulated vehicles. That general work which is concerned with the production of concrete products is not within my jurisdiction.

The factory buildings and towers within the site are not within my jurisdiction. They fall within the jurisdiction of the various departments in the local authority.

The operating centre can be safely entered and exited from the B1106 by regulated vehicles. Indeed, I saw one Eastern Concrete regulated vehicle exiting onto the B1106 at the same time that another Eastern Concrete vehicle was entering from the B1106.

No statutory objector came forward to say the entrance/exit from the site onto the B1106 created a danger to other road users. No statutory objectors came forward in any capacity.

The vehicles that are parked at the operating centre cannot be seen from Mr Hilder’s property or land. It is not accepted from the topography of the land between the back of his house and where the vehicles are parked that Mr Hilder could see any regulated vehicle. I could just see the top of the tall cement towers behind the large bund. Those towers are significantly taller than any of the operator’s regulated vehicles. Likewise, Mr Hilder would not be able to see any of the operator’s vehicles in the general site or those vehicles entering or exiting it for the same reasons based on my own observations.

The operating centre is over half a kilometre away from Mr Hilder’s property. Given the topography there can be no issue with vibration caused by the operation of regulated vehicles at that operating centre to Mr Hilder. There is no, or no persuasive, evidence before me for any finding to be made that Mr Hilder is affected by vibration.

The operating centre is over half a kilometre away from Mr Hilder’s property. Given the topography there can be no issue with dust generated by the operation of vehicles specified on this operator’s operating licence at the operating centre affecting Mr Hilder. There is no, or no persuasive, evidence before me for such a finding to be made.

The operating centre is over half a kilometre away from the operating centre. Given the topography there can be no issue with fumes generated by the operation of vehicles specified on this operator’s licence at the operating centre affecting Mr Hilder.

There is no, or no persuasive evidence, before me that lighting that is specific to the operation of this operator’s vehicles at the operating centre would be capable of prejudicially affecting use or enjoyment of Mr Hilder’s land. Given the topography it is not accepted that Mr Hilder would be able to see any of the headlamps on any of the operator’s regulated vehicles entering/exiting the site or working within operating centre or site itself. The fixed lighting that is present is in connection with the general factory work undertaken on the site. That is the principal purpose of that lighting. The bund and thereafter several hedges between that bund and Mr Hilder’s property would properly shield Mr Hilder from the fixed lights in the operating centre itself and from the headlamps of any of the operator’s vehicles.

In relation to the issue of any noise intrusion I have some personal knowledge as to the noise from vehicles on the B1106 both at the entrance/exit from the overall site onto the B1106, along the B1106, slightly off the B1106 whilst stood half-way between the bund at the back of the site and Mr Hilders property. I also have personal knowledge from remaining outside of the front of Mr Hilder’s property whilst standing on side road. My personal observation was that there is a considerable amount of traffic that flows in both directions along the B1106. That traffic, from my observation, comprised of small and large vehicles. When stood in the field I could hear that traffic but between gaps in it I could barely hear noise emanating from the site occupied by Eastern Concrete Ltd. When standing on the lane outside of Mr Hilder’s property I could hear the traffic on the B1106 but I between gaps in it I could not hear any noise emanating from the site occupied by Eastern Concrete Ltd.

The operator produced an in-depth noise report from Mr G King, an acoustic consultant from Messrs Sharpes Redmore dated 31 March 2022. Mr King is clearly an expert witness and I make that finding. That report is specific to this operator, its operation, its vehicles and the surrounding topography. It was undertaken during the day on two different dates. That report is, I find, detailed, cogent and highly persuasive not only in and of itself but because it stood up to scrutiny when Mr King gave oral evidence and when he was questioned by Hilder. Mr King was a credible witness of fact and I accept all of his evidence as such. I attach a significant degree of weight to his evidence.

In oral evidence Mr King made it clear that, in his expert opinion, it would take a 400% increase in the number of vehicle movements at the operating centre for there to be a material change in the level of noise not only generated but which would pass beyond the bund and then to Mr Hilder’s property. Mr King explained that the bund, being a solid mass, stops a significant amount of noise from leaving the site. He explained further the findings he made in his report and those shown in the colour noise plan he had produced which went from a deep crimson red (within the curtilage of the bund) to amber just the other side of the bund (showing the effectiveness of the bund in reducing sound) to green two thirds of the way between the site and Mr Hilder’s property. He reiterated his conclusion that the variation sought by the operator would “make a negligible difference to the existing noise climate.

He has confirmed that in his expert opinion the noise currently being generated by the vehicles operated at the operating centre would not be capable, in the context of the general background noise at Mr Hilder’s property, of prejudicially affecting the use or enjoyment of Mr Hilder’s land and the same would be true if the variation application were to be granted.

Mr King’s report, and his own observations, were consistent with my own site visit and what I could, and could not hear, whilst stood on the lane outside of Mr Hilder’s property.

For the above reasons I adopt all of Mr King’s findings as my own for the purposes of making this decision.

I repeat all of my findings. Having done so I find, and make as a formal determination, that Mr Hilder is not the owner or occupier of land that is in the vicinity of the operating centre because he is not within sight, sound, smell, or feel of activities emanating from the operation of this operator’s vehicles within the operating centre that fall within my jurisdiction, and which are capable of prejudicially affecting the use or enjoyment of his land. As a result, there are no valid representations before me and the application is deemed as being un-opposed.

In the alternative, I repeat all of my findings and formally determine that there is no persuasive evidence before me to find that Mr Hilder’s use or enjoyment of his land is being adversely affected by this operator on environmental grounds that fall within my jurisdiction. I further formally determine that the grant of this variation application would not create environmental conditions that were capable of prejudicially affecting the use or enjoyment of Mr Hilder’s land.

7. Decision

This application is therefore granted as applied for with immediate effect. There is no persuasive reason why, from the findings I have made, any new conditions or undertakings need to be applied to this operator’s operator licence.

Unless, or until, there is a material change of circumstances then this decision will remain as determinative. A material change, other than the removal of the bund, would be the production of rebuttal expert evidence or if there were to be an increase in vehicle movements at the operating centre that doubles those currently present or a significant change in the normal hours of operation, for example if the normal hours of operation changed to include the night-time operation of vehicles from this operating centre. That allows for markers to be placed on the file and for a degree of prudence to be factored into the assessment of the suitability of this operating centre going forward. Clearly this decision is specific to this operator as all cases are determined on their own merits.

Deputy Traffic Commissioner M Dorrington.
09 May 2022.