Decision

Decision for Andrew Wright Windows Ltd

Published 29 September 2023

0.1 IN THE SCOTTISH TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER FOR SCOTLAND

1.1 in the matter of the

2. ANDREW WRIGHT WINDOWS LTD – OM1108071

3. Public Inquiry held at Edinburgh on 9 December 2022

4. Background

The Operator is the holder of a restricted goods vehicle operator licence with authorisation for 2 vehicles granted on 5 April 2012.

5. The Call to Public Inquiry

The Operator was called to public inquiry by letter dated 5 September 2022. The reasons for the call to public inquiry included that it appeared that the Operator had failed to comply with two undertakings that it had given at a Public Inquiry that concluded on 18 October 2021:

• “ The company will employ a transport consultant for a period of at least six months. The consultant will produce an audit report of compliance and the operator’s systems for compliance, a copy of which is to be provided to the Office of the Traffic Commissioner by 01/06/2022.

• All vehicles and trailers will undergo a laden brake test as part of every PMI. The results will be recorded and the records will be kept for at least 15 months.”

6. The Public Inquiry

The Public Inquiry took place at Edinburgh on 9 December 2022. The Operator was represented by Andrew Woolfall, Backhouse Jones. Bernadine Berry, director, Andrew Martin, general manager and Gerry McGhee, production manager were in attendance.

7. The Evidence

It was accepted by the Operator that both the undertakings had not been complied with by the Operator. The Operator had intended to comply with the undertakings that they had been given at the previous Public Inquiry.

The Operator had a relationship with a transport consultant before the last Public Inquiry. After the Public Inquiry that relationship continued and the transport consultant had provided training however it was accepted that it did not constitute “employing a transport consultant for six months”. The need for an audit to be produced within 6 months had been overlooked despite it being on a forward planner because of people being on holiday and the general manager having COVID. The Operator took steps to have an audit produced as soon as a prompt was received from the OTC.

When the audit was produced it showed that the Operator was on the whole compliant however there were issues (1) some driver defect reports not being actioned and signed off in a timely manner and (2) although roller brake tests were being carried out only a few of them were laden. The Operator explained that the maintenance provider had been instructed to carry out laden brake tests and the Operator had thought that they were being done.

The audit stated:-

“This is not the worst operator I have seen and there is a strong willingness to get things right, they just do not have the underpinning knowledge required to get compliance to where it needs to be without third party assistance.”

Mr McGhee would have primary responsibility for the transport operation instead of it being spread between individuals. Ms Berry and Mr Martin had attended OLAT training. Mr McGhee had been booked to attend a Transport Manager refresher course. The Operator had entered into an agreement with a transport consultant to provide transport manager consultancy services to assist Mr McGhee. The Operator had arranged for a full audit to be undertaken by the RHA in February 2023. The Operator intended to have annual compliance audits in the future.

8. Reasoning

Mr Woolfall submitted that this was the not uncommon position of a restricted operator not fully appreciating the requirements of the licensing system. The Operator intended to comply with the undertakings, and had believed they were complying but they had failed to do so. The failures were not deliberate. The areas of concern at the previous Public Inquiry (inadequate downloads and analysis of data) had been addressed.

Mr Woolfall submitted that the Operator could be trusted to be compliant in the future. The steps that the Operator had taken demonstrated a desire and intention to be fully compliant in the future.

I agree with Mr Woolfall that it is not uncommon to see restricted goods vehicle licence operators at Public Inquiry because of failing to appreciate the requirements of the licensing system. What is uncommon is to see such an operator at a second Public Inquiry for failing to appreciate the requirements of the licensing system. In particular, where an operator has escaped regulatory action because it has given undertakings (the Traffic Commissioner had issued a strong warning), it is a serious matter when those undertakings are not fulfilled.

I accept that the failure to have laden brake tests at every PMI was not intentional. However the Operator should have checked what the maintenance provider was doing at PMIs and should have spotted that laden brake tests were not being carried out as promised.

I take a more serious view of the failures to employ a transport consultant for a period of at least six months and to produce an audit. The reason for that undertaking being accepted was so that the Operator could be given the chance to take advice from a transport consultant, rectify any gaps in its knowledge, make the necessary improvements to remedy the issues that had been identified at the previous Public Inquiry and to give the Traffic Commissioner the comfort that a qualified person had reviewed the Operator’s transport operation and had found it to be compliant.

When an undertaking is given by an Operator it should not be necessary for the OTC to have to chase the Operator in order to ensure compliance. In this case when an audit was eventually produced it showed that the Operator had not complied with the undertakings it had given and, inevitably, the Operator was called to a public inquiry causing yet more public resources to be wasted on this Operator.

A failure to comply with undertakings can result in a finding that if an operator failed to keep promises given to avoid regulatory action, it cannot be trusted to be compliant in the future. In this case I am prepared to give the Operator the benefit of the doubt and to give them one last chance to show that they can be trusted. However, giving undertakings to the Traffic Commissioner is a serious matter and non-compliance has to be marked with some measure to mark my disapproval. If other operators thought that they could give undertakings and then fail to comply with them, it would bring the practice of Traffic Commissioners accepting undertakings instead of taking more drastic regulatory action into disrepute.

I have taken into account the submission that any loss of vehicles would have a significant impact on the business. However, a short period of curtailment that can be dealt with by the Operator sub-contracting the delivery of its product is appropriate in this case.

9. Decision

The Operator’s licence will be curtailed from 2 vehicles to 1 vehicle for 2 weeks from 23:59 on Friday 28 April 2023.

Hugh J. Olson

Deputy Traffic Commissioner for Scotland

16 March 2023