Decision

Decision for John Raymond Fance

Published 8 March 2024

0.1 IN THE EASTERN TRAFFIC AREA

1. JOHN RAYMOND FANCE - OF0234765 AND AS TRANSPORT MANAGER

2. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

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3. Background

John Raymond Fance holds a Standard International Goods Vehicle Operator’s Licence authorising 1 vehicle and 2 trailers. He acts as his own Transport Manager.

There is one Operating Centre at Unit 1, Towerfield Business Park, Fane Road, Benfleet SS7 3NH.  Preventative Maintenance Inspections are said to be carried out in-house at 6-weekly intervals.

The operator appeared at Public Inquiry on 9 March 2023 when the Deputy Traffic Commissioner, Mr Baker, curtailed the licence to 1 vehicle and 2 trailers following adverse findings under section 26(1)(f) for breach of unspecified undertakings.

4. Hearing

The Public Inquiry was listed for today, 7 February 2024, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. I delayed the start of the hearing by 45 minutes, but the operator failed to appear.

5. Issues

The Public Inquiry was called for me to consider grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

• 26(1)(a) – operating from an unauthorised Operating Centre.

• 26(1)(b) – breach of licence conditions to notify changes in Operating Centre; the stable establishment; repute and a Transport Manager meeting Schedule 3.

• 26(1)(c)(iii) – Prohibition Notices (pages 63 and 68).

• 26(1)(e) – unfulfilled statements (Preventative Maintenance Inspection intervals, where vehicle and trailers would be kept when not in use, that the Transport Manager would maintain continuous and effective management, and to abide by the conditions of its licence.

• 26(1)(f) – undertakings (vehicles would be kept fit and serviceable, to employ an effective written driver defect reporting system, to retain maintenance records).

• 26(1)(h) – material changes (no longer using authorised Operating Centre, may no longer meet the requirements as to financial standing and for a Transport Manager who meets Schedule 3) etc.

• 27(1)(a) – whether the licence holder continues to meet the requirements as to stable establishment, good repute, financial standing, and a Transport Manager.

• 28 – disqualification in the event of revocation.

Mr Fance was called separately to consider whether he exercised effective and continuous management of the transport operation and due to any potential impact to his repute as Transport Manager, under section 27(1)(b) and Schedule 3.

The operator was directed to lodge evidence in support by 24 January 2024, including financial, maintenance and other compliance documentation. He failed to comply with those Directions.

6. Summary of Evidence

DVSA conducted a follow up investigation in September 2023 (page 39). The Vehicle Examiner attempted to visit on 7 September 2023. The vehicle was not at the authorised Operating Centre. The authorised site appeared to be used as a store for old cars, vans, HGVs and trailers, tankers, and scrap metal. The Examiner was unable to determine who owned the yard as vehicles were parked everywhere and parking arrangements appeared to be inadequate. 

The Examiner arranged to meet the operator at the Operating Centre on 11 September 2023, but he again failed to attend. On further contact, it was established that the vehicle and trailer were parked at an industrial estate. The operator stated that they park on Purdey’s industrial estate as it is closer to his home address and easier. A Delayed Prohibition was issued to the vehicle at the fleet check for an EBS warning light indicating the existence of a fault, with the yellow MIL illuminated. The Vehicle Examiner, Mr Hudson, highlighted the following alleged shortcomings:

• Operating Centre - it was established that the authorised operating centre was not being used and the vehicle and trailer were parking on the road at Purdeys Industrial Estate, Millhead Way, Rochford, SS4 1LB.

• Inspection and maintenance records - not properly completed with missing mileages, tyre information, no brake test records, completion date, and inspection intervals exceeded with ineffective systems in place for Vehicle Off Road and safety or defect recall.

• Driver defect reporting - defects ineffectively managed with faults reported but no rectification recorded, despite Tachpro.

• Inspection facilities & maintenance arrangements – the operator carries out his own maintenance, workshop tools appear to be kept in a Transit Van; it was unclear where maintenance was carried out as there was no capacity at Unit 1, Towerfield Business Park, annual test failures suggest safety critical defects.

• Vehicle emissions - no evidence of a system to monitor AdBlue, driver defect sheets record a warning light on the dash, and an annual test failure for a malfunction indicator lamp. There was an OBD tool which can read faults.

• Wheel & tyre management - no effective wheel security system and inappropriate tyre management system.

• Load Security – no evidence of load security training or management.

• Prohibition Assessment - delayed prohibition was issued to vehicle GF63 ZKB. The prohibition issued to trailer C474213 was removed within the specified time limit.

The operator is also the Transport Manager. He attended refresher training and Operator Licence Awareness Training in July 2022. He failed to respond to the alleged poor management as set out in the Examiner’s report but alleged to have found additional maintenance paperwork. Mr Hudson spoke to the operator on the telephone on 20 September 2023. He was apparently unhappy and suggested he might give up operations. He was advised to supply the additional material, but nothing was received. He was chased by letter dated 5 October 2023.

7. Determination

Based on the evidence summarised above and in the absence of any explanation, it was perhaps inevitable that I would record adverse decisions under 26(1)(a) – operating from an unauthorised Operating Centre, 26(1)(b) – breach of licence conditions to notify changes in the Operating Centre; the stable establishment; repute and management, 26(1)(c)(iii) – Prohibition Notices, 26(1)(e) – unfulfilled statements (Preventative Maintenance Inspection intervals, where vehicle and trailers would be kept when not in use, that the Transport Manager would maintain continuous and effective management, and to abide by the conditions of its licence), 26(1)(f) – undertakings (vehicles would be kept fit and serviceable, to employ an effective written driver defect reporting system, to retain maintenance records).

Those amount to a material change in the operator’s circumstances. The operator failed to produce financial evidence upon which I might satisfy myself against the mandatory and continuing requirement for financial standing. I therefore recorded a further adverse decision under sections 26(1)(h) and 27(1)(a).

I proceeded to consider the question posed by the appellate Tribunal in 2009/225 Priority Freight, namely how likely is the operator to comply in future. The absence of financial standing and with a Transport Manager who deliberately absented himself and failed to respond, led me to conclude that this was highly unlikely. The lack of basic compliance and a stable and effective establishment are not reflective of a reputable Transport Manager. Following any loss of repute he also loses his repute as a Transport Manager, as per the Upper Tribunal in 2017/055 Alistair Walter. In his absence I was unable to identify a suitable rehabilitative action, so he is disqualified from relying on his Certificate of Professional Competence unless and until he can persuade a Traffic Commissioner to vary this direction.   

As per the Upper Tribunal in 2014/008 Duncan McKee, trust is one of the foundation stones of operator licensing.  Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules, and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition, operators must be able to trust other operators to observe the relevant laws, rules, and regulations. The operator abused the trust placed in him by Deputy Traffic Commissioner, Mr Baker, at the previous Public Inquiry and had failed to engage with DVSA and then the Office of the Traffic Commissioner. For the reasons recorded above, I concluded that the operator must be removed from the industry and accordingly I recorded a loss of repute, pursuant to section 27(1)(a).

The failure to act placed the case in the ’Severe’ category, with nothing to mitigate. This was the second Public Inquiry within a year. As the Tribunal explained in 2005/457 Leslie John Ings, the purpose of the jurisdiction is to regulate the conduct of operators so as to ensure, first and foremost, compliance with the legislative framework of operator’s licensing. There is no requirement to identify additional features to consider disqualification, but in this case, the conduct is such that a period of disqualification is required to emphasise the seriousness and to provide a wider deterrent. Again, I have no information save the suggestion that he wanted to give up operating. The disqualification is therefore indefinite, which he can seek to vary by appearing before a Traffic Commissioner at a formal hearing. On that information I determined that the order for revocation could take effect from 23:45 tonight, 7 February 2024.

R Turfitt

Traffic Commissioner

7 February 2024