Decision

Decision for Corn Plant Hire Ltd (OF1033509)

Published 23 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

The operator holds a restricted goods vehicle operator’s licence, authorising 5 vehicles and 1 trailer granted from 7 June 2004. At the date of the Public Inquiry I was told that there were 5 vehicles specified, an increase from the original call up. The sole Director is Patrick Christopher Lavin. The operator is involved in plant hire and muck away operations.

There are two Operating Centres: West Enmd Farm, West End, Haynes, Bedford MK45 3RA, and Chalton Cross Farm, Houghton Road, Chalton, Luton LU4 9TX. There is one contractor shown on the licensing record, Carlow Plant & Commercials Ltd, said to be inspecting vehicles at 6-weekly intervals.

2. Public Inquiry

The Public Inquiry took place on 7 July 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was represented by Mr John Daly, a solicitor.

I reserved my decision in order to allow the operator further opportunity to make representations and to consider how it might change its compliance systems going forward.

3. Issues

The operator was called to Public Inquiry for me to consider whether I should make directions under:

• section 26(1)(a) – unauthorised use of a place as an operating centre;
• section 26(1)(c)(iii) – prohibitions;
• section 26(1)(e) – statement as to where vehicles would normally be kept;
• section 26(1)(e) – inspection intervals;
• section 26(1)(f) – rules on drivers’ hours and tachographs, as a result of a prohibition notice regarding the fitting of a tachograph
• section 26(1)(f) – vehicles and trailers would be kept fit and serviceable;
• section 26(1)(f) – driver defect reporting;
• section 26(1)(f) – maintenance records to be completed and retained for 15 months;
• section 26(1)(h) – material change in fitness and finance;
• Section 28 – disqualification.

4. Summary of evidence

A maintenance investigation was carried out on 28 November 2019 following a fatal collision involving the operator’s loaded vehicle and trailer combination DN15NKZ and trailer C250798 on 19 August 2019.

At the time of the visit the Examiner was concerned that the operator might be using an unauthorised operating centre. The licence has since been varied and the site is now authorised.

The Vehicle Examiner, Mr Onan, identified the following concerns:

• the responsible person could not demonstrate up to date knowledge of operator licensing requirements;
• the above offence prohibition for a tyre, which did not match the vehicle plate;
• no evidence of brake performance assessment on some safety inspection reports;
• safety inspection frequency extended: trailer C250798 was last inspected on 29 January 2019.
• insufficient PMI planning;
• High annual test failure rate;
• unauthorised OC at the time of the visit.

Due to the operator’s admissions to be found in the responses dated 5.12.19, at page 54 of the bundle, it was not necessary to call Mr Onan to give his evidence. Mr Lavin gave certain assurances, which were the subject of consideration at the Public Inquiry.

Records and finance were to be received by 11 March 2020. As a result of the postponement new directions were given for receipt 7 days in advance of the Public Inquiry. In fact, the documents were only received by the Office of the Traffic Commissioner on 6 July 2020. All operators attending Public Inquiry should understand that directions are to be complied with. Failure to do so will inevitably lead to an adverse finding that the operator has failed to cooperate with the Office of the Traffic Commissioner. This goes directly to the issue of trust, which underpins the ability to hold that operator’s licence.

The use of an unauthorised operating centre was attributed to increased criminal activity. As a result, the operator started using the site where it stored its plant and machinery. The failure to contact the OTC in advance, when advice would have been given as to the application process, has inevitably led to an adverse finding under sections 26(1)(a) and (e). That shortcoming might be attributed to a degree of ignorance on the part of the operator. In the course of the hearing, Mr Lavin confirmed that the previous site at Charlton Cross Farm, should now be removed from the operator licence record.

The operator gave the Examiner the impression that changes would be implemented immediately and since the visit Mr Lavin and his office manager, Mr Barraclough have now both attended Operator Licence Awareness training. Mr Lavin attended himself in February. I was told and accepted that forward planning is now within the control of the operator and recorded on a computer system by Mr Barraclough.

I noted the examples of drivers’ hours reporting from December 2019. To the credit of the operator I was told that vehicle units are downloaded every month, with driver cards downloaded by Mr Barraclough on a weekly basis. Mr Tach, the external analyst, produces monthly reports including infringements and missing mileage. Mr Lavin has also sought the assistance of another consultant who attends on a quarterly basis to undertake a form of auditing of the compliance systems. Correspondence also refers to the operator’s accreditation as a FORS operator. Neither of these facilities apparently corrected a confusing filing of the driver defect reports under the name of the driver rather than forming part of the vehicle maintenance file.

The main issue for me to determine was whether the operator remains fit to ensure compliance going forward. In the course of the Public Inquiry I heard that at the time of the collision it was found that DN15NKZ was fitted with tyre size: 315/80R22.5, which did not match the vehicle plate, requiring 315/70R22.5. The last valid annual test for trailer C250798 had expired on 31/10/2017. I noted that there was no prosecution of the operator following these findings.

Mr Lavin told me that the operator was unaware of this deficiency and had relied on the contractor to inspect the vehicle after its purchase. I considered Preventative Maintenance Inspection records for 29.3.19, 4.5.19, 14.6.19, 13.7.19, all of which recorded the incorrect tyre size. It was suggested in representations that since the mistake was made it was perhaps understandable that it would be repeated. I do not accept that explanation. It suggests a repeated and continuing failure to inspect the vehicle to the required standard.

I referred to the 40% failure rate at annual test. I noted that the failures were across the fleet and for varying causes. The record was not assisted by the repeated failures of one vehicle at test in 2018. I expressed my concern as to what this might indicate about that contractor’s ability to prepare vehicles for test. In that context I considered how the operator has responded to Mr Onan’s advice. It was initially suggested in Mr Lavin’s response that he was minded to contract with a new maintenance provider. That did not happen and instead he has continued to have the vehicles inspected by the same contractor who failed to identify the tyre issue. Vehicles have been presented for metred testing of brake performance at every PMI. That is to the operator’s credit but unfortunately my dip sampling of those records gave rise for serious concern. Records over several vehicles show a repeated imbalance across most axles even up to 31%. The result is that the vehicles have incorrectly been shown as having passed without meeting the requisite readings. The number of these imbalances, always recorded on the offside, prompted me to allow the operator opportunity to consult with the named contractor. It emerged that, whilst the facility is operated by another, the specified contractor was apparently satisfied with the readings; through Mr Daly I was told that the brakes would perform once on the road. I found that response to be unacceptable.

5. Deliberations

On the basis of the evidence I was satisfied to the civil standard so as to make adverse decisions under the following sections: 26(1)(a) – unauthorised use of a place as an operating centre; 26(1)(c)(iii) – 2 x prohibitions; 26(1)(e) – statement as to where vehicles would normally be kept; extended inspection intervals; (f) – rules on drivers hours and tachographs, vehicles and trailers would be kept fit and serviceable; effective written driver defect reporting; maintenance records to be completed and retained for 15 months.

I weighed into the balance the following additional matters:

• some changes had been implemented and efforts taken to better support the management of compliance
• low prohibition rate
• ineffective management control of the maintenance arrangements
• directions were not complied with
• the seriousness of the issues identified at the collision and the PG9 issued at the subsequent investigation 3 months later
• the annual test pass rate

Mr Lavin presented as a man who wished to comply but having attended training, the question was whether he was capable. This goes directly to an assessment of trust. As per the Upper Tribunal in 2013/007 Redsky Wholesalers Ltd, the “Priority Freight” question offers my starting point: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? In 2009/225, the Tribunal commented that promises are easily made, perhaps all the more so in response to the pressures of a Public Inquiry. What matters is whether those promises will be kept. In the present case the Appellant company was entitled to rely on that old saying that ‘actions speak louder than words’.

I referred to the management of maintenance and the operator’s proposal to continue as before. I therefore gave the operator a further 21 days to consider how it might demonstrate to me that it is capable of discharging the operator licence obligations, following the adverse instances above.

The operator has accepted that the annual test pass rate must be addressed. Under cover of a letter received on 27 July 2020 I was supplied with a copy of a letter sent to the licensing team in Leeds notifying of the appointment of Heathrow Truck Centre (HTC DAF), with a signed agreement dated 20 July 2020. I was also provided with a copy of an electronic form. I note the accompanying letter from the provider. As the operator acknowledged in writing that RBT tests had shown significant imbalances, I am unclear as to the value of unladen brake tests as suggested in the contractor’s letter. The operator has opted for the minimum number of laden tests suggested in the Guide to Maintaining Roadworthiness. I refer to the DVSA Guidance: Heavy vehicle brake test: best practice:

Remember: a locked wheel does not always mean a good brake.

2 . Preparing your vehicle for the brake test

Authorised Test Facilities (ATFs) are responsible for making sure that vehicles are properly loaded before the MOT starts. This normally means at least 65% of the vehicle design axle weight (DAW).

You can do this in a number of ways:

• by arranging to load the vehicle or trailer yourself
• by asking the ATF to provide load simulation - a loading fee may apply
• in the case of a tractor unit, using ballasted trailers - ask your local ATF if they have one for hire

Where load simulators can’t be placed above the rear axles, vehicles or trailers - unless exempt by design - must be loaded when tested. This includes:

• any multi-axle vehicle or trailer (excluding tri-axle semi-trailers) with a bogie weight exceeding 10,000kg
• tri-axle tractor units that are fitted with air suspension on any of the rear axles: to provide sufficient load these must be coupled to a loaded semi-trailer, so that the drive axle is loaded at or very close to the plated weight shown in column 2 of the plate and plating certificate

When loading a vehicle for brake test:

• place loads close to the rear axles
• aim to apply at least 65% - and not less than 50% - of the design axle weight to each axle
• if possible, use similar loads to add weight to the vehicle: this will help in placing the loads correctly, and achieve consistency between tests
• where load simulators can’t be placed above the axles - unless exempted by design - the vehicle or trailer must be presented laden

I advise the operator to ensure that a separate brake performance print out is also supplied, so that checks can be carried out on the weight of the vehicle at that test and for any significant imbalances.

I refer to the letter dated 21 July 2020, addressed to me. I have already noted the attendance at OLAT and the employment of Mr Tacho to monitor drivers’ hours compliance, produce reports and train drivers. I was informed that a consultant had been engaged to work with the operator. I have noted the statement of intent regarding random driver spot checks in support of the driver defect reporting system. A data base will now support the forward wall planner. I will now add the trading name of ‘P C Lavin’ to the Operator’s Licence record.

I have weighed those into the balance. I noted that there is no longer a margin on the licence. I consider that the operator should be capable of ensuring compliance but that much now relies on the trust I place on the operator. There is a need for deterrent action to ensure future compliance. I quote from a recent appeal case: 2019/025 John Stuart Strachan t/a Strachan Haulage: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. There can be no repeat. In all the circumstances I categorise this case as now falling within the ‘Moderate’ category. The Licence will be curtailed by 1 vehicle for a period 14 days to commence 23:45 on 9 August 2020.

RT/TC/30/7/20