Decision

Decision for Kevin Greening t/a Greenings Removal and Storage (OD2055049) and Transport Manager, Mark Brown

Published 2 March 2023

0.1 In the West Midlands Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Kevin Greening t/a Greenings Removal and Storage (OD2055049) and Transport Manager, Mark Brown

2. Background

This is an application for a Standard Operator’s Licence authorising the use of 2 vehicles by Kevin Greening, trading as, Greening Removal and Storage.

The application was made on the 31st March 2022 and referred for consideration at public inquiry because of links with a licence held by Brian Dale, trading as Armstrong Removals, (OD1044802).

Mark Brown is the nominated Transport Manager, although, when the application was made, Brian Dale was proposed.

Brian Dale appears at a conjoined Public Inquiry in respect of his own sole trader licence, and for consideration of his good repute as a Transport Manager.

3. The Public Inquiry

At the hearing Kevin Greening attended represented by Mr Anton Balkitis, Solicitor.

Brian Dale appeared, unrepresented.

Mark Brown, nominated Transport Manager, attended.

DVSA Vehicle Examiner, Paul Matthews, attended.

I heard evidence from all the above parties.

4. Evidence

This application was made on the 31st March 2022 following a fleet check for Brian Dale’s licence. The only vehicle on the licence, WX04 XXR, was liveried up as Greening Removal and Storage, with an address in Northfield, Birmingham and a telephone number for Greening Removals. The only reference to Armstrong Removals, (Brian Dale’s trading name) was a small area of signwriting at the bottom of the passenger door.

The vehicle was registered to Kevin Greening and insured by him. Brian Dale paid no salary to Kevin Greening.

Invoices and maintenance documents were in the name of Kevin Greening/Greening Removals.

A Maintenance Investigation Visit Report was completed on 4th April 2022. The investigation found that the operating centre specified on Brian Dale’s licence had been demolished several years ago and that the operating centre being used, Simple Storage, was the one nominated by Kevin Greening on his application.

The investigation was marked “unsatisfactory” in a number of important respects. Brake performance was not noted on preventative maintenance inspection sheets and driver defect reporting was ineffective. Driver defect reports showed nil defects, but PMI sheets revealed defects that should have been identified by the driver(s).

The MOT failure rate and the issue of an “S” marked prohibition for fractured brake actuators showed unsatisfactory maintenance arrangements. An undertaking on the licence to have effective pre-MOT inspections had clearly not been fully complied with.

When Brian Dale was asked for trading accounts in respect of his own licence he sent bank statements in the name of Greenings Removal and Storage.

Kevin Greening did not dispute the evidence contained in the DVSA statement and summarised above.

He admitted using Brian Dale’s operator’s licence for his own business. He stated that he did not know it was wrong and that he had relied on Brian Dale, his transport manager, for assurance that it was permissible.

Brian Dale produced an email he had sent to Kevin Greening on the 18th July 2022 recounting a conversation between the two of them shortly after the sale of the lorry to Kevin Greening in April 2020. That conversation clearly recognised the need for Kevin Greening to have his own operator’s licence, but stated that because of perceived delays arising from the Covid 19 situation, Kevin Greening would use Brian Dale’s licence.

Brian Dale states, “I am just going to put my hands up to it”, and, “we are all to blame”, but denies knowing it was “an offence”. In evidence, he clearly conceded that he knew it was wrong and contrary to the terms of his operator’s licence.

Kevin Greening denied that this conversation had taken place and that he knew what he was doing was wrong.

5. Findings on the Evidence

I find that Brian Dale lent his operator’s licence to Kevin Greening in the clear knowledge that this was unacceptable, and most probably, illegal. Brian Dale has considerable experience as an operator and is qualified as a transport manager. It is the most basic knowledge, which Brian Dale accepted in his evidence, that lending of operator’s licences is unlawful.

I find that Kevin Greening was using the operator’s licence belonging to Brian Dale in clear breach of the undertakings and conditions on the grant of that licence.

I found Brian Dale to be far more credible in his evidence that Kevin Greening. Kevin Greening was hesitant and vague in his evidence. Mark Brown and Brian Dale both stated that the Kevin Greening I heard evidence from was not the person they knew. Whilst I fully accept that the pressures of a public inquiry room may create nervousness and hesitancy, I believe that Kevin Greening’s difficulties stemmed from the fact that he knew his account was not true or credible. I have no doubt that the conversation in April 2020 recounted by Brian Dale did take place and that Kevin Greening was fully aware that he needed his own operator’s licence. I do not accept that Brian Dale told him that provided there was some reference to Armstrong Removals (the signwriting on the door), the loan of the disc was lawful.

His knowledge of the need for his own licence is further evidenced by the fact that the applicant applied for an operator’s licence within 24 hours of Brian Dale being notified of the DVSA investigation on the 30th March. Kevin Greening stated that the only time he knew of the need for his own licence was after the DVSA visit. However, the DVSA visit took place on 4th April after the application had been made.

Whilst Brian Dale is careful to say in his email that he “didn’t know it was an offence” it is clear from his language (“put my hands up”) and his evidence at the inquiry, that he knew what they were doing was wrong and contrary to the terms of his operator’s licence.

My finding that Kevin Greening was not misled by Brian Dale as he suggested is supported by the fact that when making the application on the 31st March the applicant named Brian Dale as his Transport Manager. If his evidence was truthful, and he had been misled by Brian Dale into operating illegally for almost one year, then surely the last person a responsible applicant would name as their transport manager is the person who misled them?

6. Considerations and Decision

On an application for an operator’s licence the onus is on the applicant to satisfy me that the Statutory criteria are met and that the licence can be granted. Kevin Greening, trading as Greening Removals and Storage, fails to satisfy me as to repute, an essential requirement for operating a licence. I find that he sought to mislead the authorities for over 2 years by borrowing Brian Dale’s licence and rather than “come clean” at the public inquiry, he sought to perpetuate the lie that he believed the arrangement to be lawful and that the 2020 conversation with Brian Dale did not take place.

I have no reason to doubt the repute and professional competence of Mark Brown the proposed transport manager. Whilst he would be acceptable as a transport manager on the licence, it is the applicant, Kevin Greening, who I have to trust and I have no confidence in his commitment and ability to run a compliant licence based on his conduct over the last 2 plus years and his evidence before me at the inquiry.

There were significant failings in the maintenance arrangements regarding the vehicle and licence operated by Kevin Greening and Brian Dale was clearly unable, from both his medical condition and other weaknesses, to carry out his function fully and effectively between April 2020 and March 2022. He, according to Kevin Greening, misled him for over 2 years about the legality of their arrangement, yet Kevin Greening had no qualms about naming him as his transport manager on the initial application and only nominated Mark Brown in August 2022. This shows a poor attitude towards compliance and the need to manage a licence effectively.

The application for an operator’s licence by Kevin Greening, trading as Greening Removals and Storage, is refused under section 13A(2)(b) of the Act.

Anthony Seculer

Deputy Traffic Commissioner

22nd August 2022