Decision

Decision for Pillory Down Skips Ltd (OH2025739)

Published 30 December 2022

0.1 In the Western Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Pillory Down Skips Ltd (OH2025739)

2. BACKGROUND

This restricted licence was initially referred to a Traffic Commissioner because of concerns that it may be being used by a related company, Pillory Down Group Limited, linked by common director Jack Feltham. That matter has since fallen away as the linked company is no longer trading and Mr Feltham has applied to have it struck off the register.

The one remaining matter is whether the type of licence is correct.

3. THE PUBLIC INQUIRY

Jack Feltham, Zoe Warren and Dee White attended the public inquiry represented by Lee Hughes of Lincoln House Chambers. Written submissions were provided in advance.

The business is “skip hire”. It was accepted at the outset that no-one has yet returned a skip empty and what customers want is waste taking away. Mr Hughes took met to paragraph 43 of the Senior Traffic Commissioner’s Statutory Guidance Document Zero and reminded me that I ought to “avoid strained constructions and must give effect to Regulation (EC) No 1071/2009 and section 3(2), which permit the carriage of goods for hire or reward as well as in connection with the business of the operator. Section 3(3) of the 1995 Act allows a goods vehicle to be used on a road for the carriage of goods for or in connection with any trade or business carried on by the holder of the licence, other than that of carrying goods for hire or reward”.

Mr Hughes reminded that (para 44) “Where the operator only carries goods that are, or become and then remain, the operator’s own property, a restricted licence is likely to be appropriate”. He took me through the three indicia at the end of paragraph 44. Transport of the goods was clearly part of the business. There was clearly payment. But the operator did not hold a type of insurance policy that covered carriage of goods for reward. That meant that the three indicia were not all met so a restricted licence was appropriate. This was one of the factors that distinguished this case from Parker Body Repairs Limited.

By virtue of Section 34 of the Environmental Protection Act 1990, ownership of the waste must transfer to the carrier at the point at which it is collected. This was to prevent fly-tipping. Given that ownership transfers, it is for the company to decide what to do with it. Paragraph 45 indicates that ownership is relevant.

In relation to PBRL, the vehicles never belonged to the operator. They always belonged to the client and were returned to the client. The waste is not returned to the householder. So a restricted licence is appropriate.

I invited Mr Hughes to consider the definition of “own account” in EU Regulation 1072/2009 which indicated that carriage needed to be “ancillary” to a separate occupation. I invited Mr Hughes to consider some caselaw within the PSV industry. I also reminded Mr Hughes that the first stage was to establish an exemption from EU Regulation 1071/2009. Mr Hughes argued that 1072 was irrelevant as was the PSV caselaw. Paragraph 45 states that ownership is a key factor.

Mr Hughes closed by pointing out that the operator’s business had not materially changed since the licence was granted. The sentence in paragraph 45 that the goods “become and then remain” the property of the licence holder was a physical impossibility requiring “eternal ownership”. My job was to interpret the law, not make it.

The remainder of the hearing was given over to general compliance matters which were dealt with at the time.

4. POST-HEARING SUBMISSIONS

I received further and unexpected submissions from Mr Hughes’ instructing solicitor, Jennifer Watts of Watts Legal, on 11 July 2022. Nevertheless, I have regard to them when considering my decision. Largely, the submissions say nothing further than that said by Mr Hughes at the inquiry. They seek to sever any relevance of the caselaw and refer me to the Waste Framework Directive 2008 and Section 3(3) of the 1995 Act.

5. CONSIDERATION

The starting point is Regulation (EC) No. 1071/2009 on entry to the occupation of road transport operator and the exemptions thereto. That is because it is first necessary to establish that the operation does not fall within the scope of, or benefit from an exemption to that over-riding Regulation, now adopted in to UK law.

The Recitals to the Regulation are not part of the Regulation but exist to allow for its proper interpretation. Recital 6 says the following:

In the interests of fair competition, the common rules governing the exercise of the occupation of road transport operator should apply as widely as possible to all undertakings. However, it is unnecessary to include within the scope of this Regulation undertakings which only perform transport operations with a very small impact on the transport market.

So the Recital invites a wide application and sets out to include all bar those “with a very small impact on the transport market”.

Within the Regulation itself, we first find Article 1(2)

This Regulation shall apply to all undertakings established in the United Kingdom which are engaged in the occupation of road transport operator. It shall also apply to undertakings which intend to engage in the occupation of road transport operator. References to undertakings engaged in the occupation of road transport operator shall, as appropriate, be considered to include a reference to undertakings intending to engage in such occupation.

Some exemptions follow in relation to small vehicles, slow vehicles and certain passenger transport operations, none of which are relevant here.

Next we find Article 2(1) which tells us that “road transport operator” means either “road haulage operator” or “road passenger transport operator”. It goes on:

[For the purposes of this Regulation] “the occupation of road haulage operator” means the activity of any undertaking transporting goods for hire or reward by means either of motor vehicles or combinations of vehicles”

So the test is quite simply whether the transport of goods is carried out for “hire” or for “reward”. “Hire” purports a narrow meaning in that the undertaking, the operator, hires out their transport services explicitly as such. “Reward”, however, carries a much larger meaning. The Oxford English Dictionary cites a reward as being “a thing given in recognition of service, effort or achievement”. The verb means “give something to someone in recognition for their services, efforts or achievements”. It was accepted at the outset that no-one has yet hired a Pillory Down skip and returned it empty. The reality is that they pay for the skip to be transported to their home, for it to stay on site whilst it is filled and then for it to be taken away again with their unwanted goods within it. The transport to and from is rewarded by payment, even if not explicitly shown as such on an invoice. This skip operation is every bit a haulage operation.

Mr Hughes argued that a Restricted licence was adequate because the goods were not insured and pointed me at the three indicia at paragraph 44 of the STC’s Statutory Guidance. He indicated that an answer in the negative to any of those three points meant that a Standard licence was unnecessary. Such a conclusion takes the three indicia out of context. What the Statutory Document actually says is the following:

Determining the correct type of licence might be a question of fact and degree, but answering in the affirmative to the following is likely to suggest that the operation was “for or in connection with any trade or business” and for “hire or reward”:

• Is the transport of the goods part of the business?

• Does the operator hold, and rely on when carrying those goods, a type of insurance policy that covers carriage of goods for reward?

• Does the carrying result in payment, direct or indirect, which benefits the owner or user of the vehicle?

What the document says is that answering in the affirmative to those questions is a strong indicator that a standard licence is required. It does not say that answering any one of them in the negative means that a Standard licence is not required.

Mr Hughes appeared also to mis-construe paragraph 45 of the Guidance. I repeat it here for ease, broken in to its constituent parts:

As that implies, ownership of the goods is relevant to determining the type of licence required. A restricted licence is only appropriate for the carriage of the operator’s own goods (i.e. the goods are the property of the business or, in the case of a company that entity or its parent or subsidiary) and on their own account.

I will illustrate what that means with an example. If a grounds-worker uses a truck to transport a digger to site, then uses that digger himself to lay some drains or whatever, then uses the truck to bring the digger home again, that is the grounds-worker using the truck to carry his own goods (the digger) on his own account so that he can carry out his trade of conducting groundwork. A scaffolder is another example where the customer is paying for the scaffold to be erected on site, ownership of the scaffold remains that of the scaffolder and transport is merely incidental to the day job of erecting scaffold. This is confirmed in the last sentence of paragraph 45:

Where the transport is part of the operator’s wider business, such as converting or processing of the goods as opposed to simply conveying them to another place, that is likely to fall within the definition of section 3(3).

Finally, to the middle sentence of paragraph 45:

In Parker Body Repairs, the Upper Tribunal looked at the business model and what was involved in the transport activity. Where a predominant part of the service is the transportation of goods, that is likely to fall within the definition given to hire or reward adopted by the Upper Tribunal.

The predominant part of Pillory Down Skips’ activity is the transportation of goods.

The domestic legislation is every bit aligned with the European Regulation. Mr Hughes told me that this operation met the definition of Section 3(3). What that Section actually says is:

(3) A restricted licence is an operator’s licence under which a goods vehicle may be used on a road for the carriage of goods for or in connection with any trade or business carried on by the holder of the licence, other than that of carrying goods for hire or reward. (emphasis added)

The business is the transport of empty skips to a customer’s site and then the onward transport of the skip and the waste to a place of disposal. That is all transport. It is all for hire or reward. It is a haulage operation.

I referred Mr Hughes to EU Regulation 1072/2009. I believe it is relevant context as it was obviously drafted at the same time as 1071/2009. It gives an indication of what was in the draftsman’s mind for both Regulations. It provides the following

Article 1 Scope

1. This Regulation shall apply to the international carriage of goods by road for hire or reward for journeys carried out within the territory of the Community.

4. This Regulation shall apply to the national carriage of goods by road undertaken on a temporary basis by a non-resident haulier as provided for in Chapter III.

5. The following types of carriage and unladen journeys made in conjunction with such carriage shall not require a Community licence and shall be exempt from any carriage authorisation:

a. carriage of mail as a universal service;

b. carriage of vehicles which have suffered damage or breakdown;

c. carriage of goods in motor vehicles the permissible laden mass of which, including that of trailers, does not exceed 3,5 tonnes;

d. carriage of goods in motor vehicles provided the following conditions are fulfilled:

(i) the goods carried are the property of the undertaking or have been sold, bought, let out on hire or hired, produced, extracted, processed or repaired by the undertaking;

(ii) the purpose of the journey is to carry the goods to or from the undertaking or to move them, either inside or outside the undertaking for its own requirements;

(iii) motor vehicles used for such carriage are driven by personnel employed by, or put at the disposal of, the undertaking under a contractual obligation;

(iv) the vehicles carrying the goods are owned by the undertaking, have been bought by it on deferred terms or have been hired provided that in the latter case they meet the conditions of Directive 2006/1/EC of the European Parliament and of the Council of 18 January 2006 on the use of vehicles hired without drivers for the carriage of goods by road (12); and

(v) such carriage is no more than ancillary to the overall activities of the undertaking

e. carriage of medicinal products, appliances, equipment and other articles required for medical care in emergency relief, in particular for natural disasters.

Point (d)(iv) of the first subparagraph shall not apply to the use of a replacement vehicle during a short breakdown of the vehicle normally used. (emphasis added)

This Regulation was written at the same time as Recital 6 to 1071/2009 and is very informative as to what the draftsman meant by “very small impact”.

Mr Hughes made a fair point that nothing had materially changed since the licence was granted. This application was made in August 2019 and granted in September which predated the updated Senior Traffic Commissioner’s guidance document. This is an otherwise compliant operator. I indicated during the inquiry that I had no intention of seeking to put this operator out of business. Any new application can be determined under delegations without referral to a Traffic Commissioner unless fresh concerns arise. My intention is to permit continuous operation. I am allowing what I believe to be adequate time, but I note that one of the operating centres appears sensitive. Providing the fresh application is made promptly and is complete, I would look favourably at a request to extend the revocation date should that be necessary.

6. DECISION

Pursuant to an adverse finding under Section 26(1)(h) of the Act in that it has now been determined that the nature of the operation requires a standard licence, the licence is revoked. Revocation shall take effect at 23:59 hours on 3 November 2022.

Kevin Rooney

Traffic Commissioner

3 August 2022