Decision

Decision for James Keith Liverick t/a Moredun Garage (OC0260567)

Published 7 July 2023

0.1 In the North Western Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 James Keith Liverick t/a Moredun Garage (OC0260567)

2. Introduction

James Keith Liverick trading as Moredun Garage (“Mr Liverick”) is the holder of a restricted goods vehicle operator’s licence OC0260567 issued in 1992. The licence authorises the use of 2 vehicles with 1 vehicle recorded as currently in possession. The operating centre is at Moredun Garage, Alston, Cumbria.

The public inquiry was called after I was made aware of the circumstances of Mr Liverick’s conviction at Carlisle Magistrates’ Court on 30 March 2022 of two charges of operating illegal waste sites. Mr Liverick received a fine of £1980 and was ordered to pay a victim surcharge of £190 and costs of £1350.He was allowed to pay the fine at the rate of £100 per month.

Mr Liverick did not disclose the fact of the conviction to my office. This was despite the specific opportunity to do so at the renewal of the licence in August 2022.

I was also made aware that Mr Liverick’s vehicles had a 100% failure rate at both initial and final presentation for annual test over the past 5 years.

After Mr Liverick was asked to explain the convictions, he wrote to my office claiming he had notified “DVSA” in May 2022. He also said he would cease to hire out skips following the convictions.

All of these matters prompted the call to public inquiry to consider if there had been material change as to Mr Liverick’s fitness. The evidence that the fine was being paid at such a low rate raised the question about sufficiency of financial resources as well as the other questions about Mr Liverick’s approach to compliance.

Whilst it appears the history of the licence over its 30-year history was not entirely unblemished, there was no record of attendance at public inquiry, or any regulatory action being considered in the past 20 years.

3. The Call to Public Inquiry

Mr Liverick was called up to public inquiry by letter dated 19 April 2024. The call up letter gave notice that the grounds for regulatory action in Sections 26(1)(b), 26(1)(f) and 26(1)(h) of the Goods Vehicle (Licensing of Operators) Act 1995 (“The Act”) were to be considered as well as the provisions for disqualification in Section 28 of the Act.

4. The Public Inquiry

The Public Inquiry was heard at Golborne today. Mr Liverick did not attend and did not provide any explanation for his absence.

I have considered Paragraph 5(7) of Schedule 4 of the Goods Vehicle (Licensing of Operators) regulations 1995 and the guidance in the Senior Traffic Commissioner’s Statutory Document Number 9: Case Management. I consider that it is appropriate to proceed to a determination of the public inquiry in the absence of Mr Liverick.

Ahead of the public inquiry, my office received correspondence from a transport consultant, Stephen Roberts of North East Logistics Academy Ltd with Mr Liverick’s authority. Mr Roberts said he was asked to assist Mr Liverick by undertaking an audit and other preparations for the public inquiry. Mr Roberts did not further contact my office about the matter.

I am therefore satisfied that Mr Liverick was aware of the hearing and understood that the significance of the matters to be discussed. I find that he has made a conscious decision not to attend or cooperate with the inquiry process.

5. Evidence

Documents provided by the Environment Agency (“EA”) as the prosecuting authority explained the basis of the convictions. Mr Liverick, with his son, was said to be operating a skip and waste operation for profit. There was no audit trail of where the waste collected went for disposal.

During a 2-year period between August 2018 and December 2020, EA officers witnessed Mr Liverick and others disposing of waste unlawfully at 3 sites including the operating centre at Moredun Garage. Whilst there was a limited exemption allowing the use of suitable waste for construction purposes, the site did not have an environmental permit for importing, depositing, treating, sorting or disposing of waste. During the relevant period officers witnessed the depositing, storage and treatment of waste on this site. The observations noted the use of the vehicle MX54 MHL that is specified on the operator’s licence to transport the waste involved.

Mr Liverick was issued with letter by the EA in September 2018 requiring him to stop handling controlled waste at the premises. The EA documents reveal that the use of the site for that purpose continued regardless into 2019. The EA note that by operating an end-of-life vehicle dismantling business without a permit, Mr Liverick had saved £5,132 purely on the permit application fees and made additional significant savings as a consequence of avoiding the purchase of appropriate depollution equipment and maintaining the site to the required standard.

The papers also reveal that Mr Liverick failed to cooperate with EA officers and his conduct was frequently obstructive to the investigation. This included repeatedly refusing to allow EA officers access to his premises and declining invitations to be interviewed about the matter.

Mr Liverick pleaded guilty to two offences of operating or knowingly permitting the operation of a waste operation for the deposit, treatment and storing of waste, except under and to the extent authorised by an environmental permit, contrary to regulations 12(1) (a) and 38(1)(a) Environmental Permitting (England and Wales) Regulations 2016.

In his correspondence before the hearing, the consultant, Mr Roberts, said it was very clear that Mr Liverick was not aware of the full implications of the failings to his obligations. His health was poor.

Mr Roberts did not complete the audit as it appeared that there were no systems in place other than preventative maintenance inspections.

As I mentioned I read through all the evidence, when I spoke to Mr Liverick about the fines from environmental Agency, He does not understand that the permits he had were revoked, the same for the 100% MOT Failure, he was not aware of how it affected his operator’s licence. I did not carry out the audit because apart from PMI’s not much else was in place. Mr Roberts gave the example of asking for details of tachograph analysis and simply being handed a box of tachograph discs.

Mr Roberts said he had advised Mr Liverick to apply for surrender of his licence, but no such application has been received to date.

6. Findings of fact

I find the fact of the conviction is proved and is highly relevant to the question of fitness but I accept that the conviction became spent for the purposes of the Rehabilitation of Offenders Act 1974 (ROA 1974) on 30 March 2023.

I have taken into account the guidance and directions in the Senior Traffic Commissioner’s Statutory Document No.1 and have determined the conviction should be admitted in evidence.

The relevant considerations I have applied are these:

The conviction was for an offence contrary to regulation 38 of the Environmental Permitting (England and Wales) Regulations 2016. Such an offence is identified as “relevant” and “notifiable” by the provisions of Statutory Document 1.

Mr Liverick did not disclose the conviction within 28 days of it being imposed. He also failed to declare the conviction when competing the licence continuation form on 5 August 2022. Had Mr Liverick promptly disclosed the conviction, it is likely that the public inquiry would have been convened well before the conviction became spent.

The facts that led to the conviction involve the failure to comply with a regulatory framework intended to protect public safety, the environment and promote fair competition. The facts involve the use of the licensed goods vehicle and there is also evidence of a failure to cooperate with officers of an enforcement/regulatory body. Those facts are so relevant to the question of Mr Liverick’s fitness that the exemption in section 7(3) of the ROA 1974 applies namely,

“If at any stage in any proceedings before a judicial authority in Great Britain… the authority is satisfied, in the light of any considerations which appear to it to be relevant (including any evidence which has been or may thereafter be put before it), that justice cannot be done in the case except by admitting or requiring evidence relating to a person’s spent convictions or to circumstances ancillary thereto, that authority may admit or, as the case may be, require the evidence in question…, and may determine any issue to which the evidence relates in disregard, so far as necessary, of those provisions.”

I find that the facts of the conviction are such that it amounts to a material change of Mr Liverick’s fitness to hold an operator’s licence and satisfies the ground for regulatory action in Section 26(1)(h) of the Act.

I further find that the failure to notify the conviction within 28 days of it being recorded, is a breach of a condition of the licence and satisfies the ground for regulatory action in Section 26(1)(b) of the Act. The failure to disclose the conviction when signing the declaration on the continuation form also amounts to a material change as to fitness.

The evidence of the woeful annual test failure rate over the past 5 years, leads me to a finding that Mr Liverick has failed to honour the undertaking on the licence that vehicles would be kept fit and serviceable. This satisfies the ground for regulatory action in Section 26(1)(f) of the Act.

I have not been provided with any evidence of the financial standing of Mr Liverick as an operator. As this is a restricted licence, I am concerned in the absence of such evidence that the operator is unable to meet the continuing requirements in sections 13C and 13D of the Act. I make a finding that this also amounts to a material change for the purposes of Section 26(1)(h).

I have not been asked to allow a period of grace or given any cause to believe that Mr Liverick will achieve the required level of financial standing in future.

7. Decision

Having reached these findings of fact, I have considered the guidance in Statutory Document 10 and the balancing factors set out therein.

There are few, if any, positive features that I can identify in the absence of evidence from Mr Liverick. I do give some credit for the fact that the licence has not given cause to be called to public inquiry in the past 20 years. I also note the absence of evidence of prohibitions, fixed penalties or prosecutions directly related to the operation of goods vehicles. However, the weight to be given to such factors must be limited by the seriousness of the events that have prompted this hearing.

On the contrary the negative features are considerable and can be summarised as follows:

• Deliberate by the operator which led to unfair commercial advantage. This specifically relates to the use of the vehicle to support the unlawful disposal of waste with the financial advantages set out by the EA in their evidence.

• Persistent offending. The EA evidence sets out how Mr Liverick continued to fail to comply with their regulations for over 2 years despite warnings and other interventions.

• Mr Liverick also failed to co-operate with and deliberately obstructed the EA enforcement investigation.

• The information provided by Mr Roberts indicates an almost complete absence of systems and procedures to prevent operator licence compliance failings.

• The 100% failure rate at MOT

These negative features completely outweigh any positive features. I also determine that Mr Liverick’s conduct is such that it falls squarely into the category of “severe” for the purposes of regulatory action in accordance with the starting points in Statutory Document 10.

I have gone on to consider the Priority Freight 2009/225 question. namely, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” The findings of fact I have made in this case can only lead to a conclusion that I cannot have any confidence in future compliance by Mr Liverick.

Although the primary concern involves action taken by the EA, Mr Liverick’s conduct in blatantly and persistently failing to comply with environmental regulations means that I cannot have any faith in his ability to comply with operator licensing requirements in future.

I have then gone on to consider the question posed in Bryan Haulage 2002/217, “is the conduct such that the operator ought to be put out of business?” I have noted that this is a restricted licence, and that Mr Liverick has previously suggested he will cease to hire out skips. In the absence of evidence from Mr Liverick, I am unclear what effect losing the right to operate goods vehicles will have on the wider business and if there is still a need for such a licence. However, the circumstances of this case are such that I have little hesitation in answering that question in the affirmative. The goods vehicle has been used to support the unlawful operation of a waste business and it would be grossly unfair to the vast majority of other operators in the sector who work hard be compliant, to allow such an operator to continue in competition with them.

Accordingly, I conclude that Mr Liverick by reason of the failings found above lacks the fitness required to continue to hold an operator’s licence and that the grounds for revocation in section 26(1)(b), (f) and (h) of the Act are established.

I will defer the date of revocation to allow the orderly closure of the business or for the business to make alternative arrangements for its transport requirements to 21 July 2023. This will also allow Mr Liverick a final opportunity to make any representations.

I have considered whether to disqualify James Keith Liverick under Section 28 of the Act from holding or obtaining an operator’s licence in the future, and from being the director of a company holding or obtaining such a licence. For the reasons outlined in above, and having performed the same balancing act described therein, I conclude that Mr Liverick should be so disqualified. I determine that such an order is necessary and proportionate for Mr Liverick be prevented from managing an operator’s licence until such time he can provide reassurance he will do so in a compliant manner.

In deciding upon the length of the disqualification, I have taken account of paragraph 108 of the STC’s Statutory Guidance Document 10 and the suggested starting point of between 1 and 3 years at a first public inquiry. I consider the facts of this case are serious but balance that with the fact that this is the first such order for Mr Liverick Accordingly, I have determined that the period of disqualification can be limited to 12 months.

If after that period has expired, Mr Liverick wishes to make a new application for an operator’s licence he will need to demonstrate what steps he has actively taken to improve his knowledge of what is needed to be a compliant operator. It is likely I would also wish to see evidence that he was supported in any new venture by a professionally competent and experienced transport manager or similarly qualified person.

If Mr Liverick contacts my office within 28 days with an explanation for his failure to attend today, I will consider setting aside the orders above and relisting the public inquiry.

Gerallt Evans

Traffic Commissioner for the North West of England

20 June 2023