Decision

Decision for Hunter Surfacing Limited (OM2033373)

Published 1 September 2023

0.1 In the Scottish Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Hunter Surfacing Limited (OM2033373)

2. Background

The operator has held a restricted goods vehicle operator licence with authorisation for the use of 5 vehicles since July 2020

On 12/04/2022 the operators vehicle (SN70XWR) and trailer combination (176035) was issued with an “S” endorsed prohibition for the following:

1. Stop lamp inoperative and no stop lamps show a red light with brake applied

2. Direction indicator inoperative and cannot be used to clearly show the drivers intention

3. Registration mark obscured or illegible

4. Vehicle registration plate incorrect. Registration mark does not relate to the vehicle

5. Drivers licence expired (For driver Gordon Nimmo)

6. Non or inadequate fire extinguishers

7. Fail to submit weekly record for examination Sec 89(4) Transport Act 1968

As a result of the “S” endorsed prohibition, DVSA commenced a desk based assessment to ascertain whether the company had the appropriate systems in place.

An initial letter dated 20/04/2022 was issued to the operator requesting documentation be submitted for analysis. An extension to the deadline or provision of the documentation was requested. Thereafter, a reminder had to be issued. The operator failed to provide satisfactory responses and was eventually called to public inquiry.

The operator was issued with a call-up letter and brief of papers by recorded delivery post and email. Mr Hunter responded by email advising he was no longer at the correspondence address provided to OTC. Papers were issued to his updated address, whereafter he requested an adjournment due to his being out of Scotland working.

The adjournment request was refused and Mr Hunter was advised that the public inquiry would proceed as scheduled on 01/09/2022.

Two further emails were received from Mr Hunter on 24/8/2022 seeking an adjournment. He was advised again that the Inquiry would proceed as scheduled on 01/09/2022. Mr Hunter failed to attend the public inquiry.

The deputy traffic commissioner’s decision was to deal with matters by way of a warning subject to confirmation of agreement to undertake an audit. Mr Hunter gave that undertaking and agreed to provide an audit by 7 April 2023.

On 07/04/2023 an audit report was received from GRT Road Transport Consultants, on behalf of the company. The audit highlighted numerous shortcomings, many of them serious.

I directed that the operator be called to public inquiry again. 10 July 2023 was fixed. On the morning of the public inquiry, I was advised that the operator sought a further adjournment to seek legal advice. I was also advised that there was a minor discrepancy as regards to the date for inquiry in the paperwork. I agreed to adjourn for a short period to allow Mr Hunter to seek legal advice. The inquiry was relisted for 20 July 2023.

No documentation was received from Mr Hunter in advance of the inquiry. Attempts were made by staff in my office to contact him, On the day before the public inquiry, he informed a member of my staff that he did not intend to attend. He was advised that a decision may be made in his absence.

3. The Public Inquiry

The inquiry called before me at Edinburgh on 20 July 2023. Mr Hunter was in attendance.

4. Evidence

Mr Hunter told me that he had not intended to attend the inquiry before he had spoken to a member of my office staff the previous day. He didn’t think there was any point. He knew he had totally messed up and didn’t see any merit in attending. He had stuck his head in the sand. Having spoken to the clerk in my office he felt better and now understood that it was better to turn up and face the music because he might want a licence again in the future.

I explained to Mr Hunter that I was on notice of his failure to attend the previous inquiry, the prohibitions which had been issued to his vehicle and the significantly adverse finding of the audit report carried out by GRT consultants.

Mr Hunter understood that this was a serious case, and that he had had several chances before, but he told me he wanted another chance. He had been really busy, his whole business was a mess and he just needed six months to turn it around. His brother in law was a transport manager and he was going to hire him to get things sorted. I could call him back in six months and everything would be fine.

I explained the purpose of the STC statutory documents to Mr Hunter and fact that the starting point in this case was likely to be serious to severe. Standing that I asked Mr Hunter what the impact of revocation and or disqualification would have on his business.

Mr Hunter told me that it was just him he did everything and if he didn’t have his vehicle then he couldn’t get tar to sites. He could hire in external haulage but he might end up losing money because of the cost of it. Mr Hunter accepted however, that none of the financial information which had been requested had been submitted to evidence that. Mr Hunter said that I should just take his word or for it.

5. Consideration of the evidence and balancing

Mr Hunter is the sole director of the applicant company. He is in sole control of it and his actions can be equated with it.

It was clear from the outset that Mr Hunter had very little understanding of the standards required in the operation of heavy goods vehicles. He was an unconvincing witness, who appeared driven by self-preservation rather than any concern for road safety. His suggestion that he should be given a further six months to ‘sort things out’, when set against the context of his history as an operator and the serious road safety concerns before me, demonstrated the limitations of his understanding of the standards required.

Rather than deal with issues or problems head on, Mr Hunter stuck his head in the sand. He had failed to attend one inquiry and had to effectively be coaxed to attend the second before me. Having heard his evidence, I find that he did so, not out of any sense of propriety or obligation, but because he thought it might help his chances if he decided to apply again in the future.

Mr Hunter’s vehicle had attracted prohibitions at a roadside stop in April 2023, one of them ‘S’ marked. Further prohibitions, including one for overweight, had been issued in January 2023. The audit report which GRT consultants had undertaken in April highlighted numerous shortcomings in the operator’s systems. Many of the findings were road safety critical – tyres were found to be in use below the legal limit, driver defect reporting was inadequate and unaudited, brake testing was not being carried out properly and there were no wheel torque records. Mr Hunter admitted that he was unable to produce the required 15 months worth of records.

It was unclear whether Mr Hunter intended to continue to engage GRT consultants, but he did advise that his brother in law was a transport manager and that he intended to hire him to put things right. However there was no evidence before me to indicate that any of Mr Hunter’s systems were, as at the date of the public inquiry, fit for purpose. I therefore find that his continued operation of vehicles was likely to pose a significant risk to road safety.

There were some positives to weigh in. Mr Hunter had, at least, turned up for the inquiry this time, although I was able to give that little weight in light of my findings regarding his motivation for that. He had had the audit carried out as he had undertaken to do so and that was provided to my office in time.

The MOT pass rate was 100% but given the low number of tests and vehicles specified, when set against mechanical prohibit rate and audit findings, that too could be afforded little weight. I was also prepared to accept that Mr Hunter was extremely busy and appeared to have become overwhelmed by his business. However where set against the seriousness of the issues before me, the negatives in this case clearly outweigh the positives.

This case involves a restricted licence where the continuing requirement on behalf of the operator is ‘not to be unfit’. However, having regard to the decision of the Transport Tribunal in 2013/07 Redsky Wholesalers Limited I considered the question posed in 2009/225 Priority Freight to be relevant in assessing fitness. I asked myself therefore, how likely is it that this operator will, in future, operate in compliance with the operator licensing regime?

My findings in this case lead me to conclude there is little chance that the operator would comply in the future, should the licence survive. Mr Hunter has had several recent opportunities to improve his compliance. This is his second regulatory public inquiry and he was in receipt of an audit in April, but at the date of inquiry had taken no action to improve. My finding in relation to his motivation also indicate that compliance with the licence undertakings is not Mr Hunter’s priority.

Mr Hunter told me that regulatory action would mean the end for his business. He couldn’t take tar to sites. He could use external haulage but it would mean he would lose money. There was no evidence before me to allow me to conduct any meaningful assessment of Mr Hunter’s finances to test his claims. However, the question posed in T/2002/217 Bryan Haulage (No.2) may be relevant: “Is the conduct of this operator such that it ought to be put out of the business?” Given Mr Hunter’s poor attitude and conduct which has seriously imperilled road safety, that question must be answered in the affirmative.

I had regard to the Senior Traffic Commissioner’s Statutory Document No. 10: Principles of Decision Making, in particular, Annex 4. This operator has obtained a commercial advantage over other compliant operators by failing to have proper systems for the management of drivers and vehicle maintenance. Those failures have materially impacted road safety. Prohibitions have been issued and the operator’s attitude and level of understanding are poor and there have been failures to comply with directions from DVSA and my office. There is also the previous failure to attend public inquiry which cannot be overlooked.

The starting point for regulatory action in this case is therefore severe. Even weighing in balance in the positives I have found I this case, I find that revocation of this operator’s licence is a proportionate regulatory response. I direct therefore, that the revocation will take effect from 23:59 on 23 July 2023. That will allow for an orderly parking up of the HGV.

In considering whether disqualification should follow revocation, I again had regard to Senior Traffic Commissioner’s Statutory Document No. 10: Principles of Decision Making. I reminded myself of the authority in T/2010/29 David Finch Haulage. In that case, the Transport Tribunal said:

“The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary…”

The Senior Traffic Commissioner’s guidance states that serious cases may merit disqualification of between five and ten years. For a first public inquiry, the starting point suggested is between one and three years. This operator has an adverse history in operator licensing and has been called to two regulatory public inquiries in quick succession.

This is undoubtedly a serious case involving breaches of trust which go to the heart of the licencing regime. Road safety has been compromised and the operator has gained a commercial advantage over other operators by virtue of its actions. Despite a previous, very recent, warning and being afforded an opportunity to improve compliance, the operator has failed to do so. Mr Hunter’s poor attitude and his failures to address the shortcomings indicate that disqualification is proportionate in this case.

Balancing in the positives I did find and having regard to the starting points set out in the STC guidance, I have decided that it is proportionate to disqualify both the operator company, and its director, Mr Steven Hunter, from holding an operator licence for a period of one year. Such a period, being at the lower end of the scale, reflects the serious nature of the finding I have made, but also recognises the positives that i was able to find.

For the same reasons, I consider that S.28(4) should apply in this case and I direct accordingly.

Should Mr Hunter wish to apply again in the future he will have to demonstrate that he has significantly improved his knowledge and understanding of what is required of an operator of heavy goods vehicles, and that he is fit to be trusted once again.

Claire M Gilmore

Traffic Commissioner for Scotland

20 July 2023