Decision

Decision for Walter David Branton & Christine Elizabeth Branton (OF1023429) & Andrew James Branton, Transport Manager

Published 20 March 2023

0.1 In the Eastern Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Walter David Branton & Christine Elizabeth Branton (OF1023429) & Andrew James Branton, Transport Manager

2. Background

Walter David Branton and Christine Elizabeth Branton holds a Standard National Goods Vehicle Operator’s Licence authorising 2 vehicles and 2 trailers, as a partnership. The Transport Manager is listed as Andrew Branton.

There is one Operating Centre at Willow Tree Farm, Main Road, Deeping St Nicholas, Spalding PE11 3BN. Preventative Maintenance Inspections are said to be carried out by Culpins Volvo at 6-weekly intervals for vehicles and 8-weekly for trailers

3. Hearing

The Public Inquiry was originally listed for 22 October 2022 but had to be adjourned to today, 14 December 2022, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. was present in the form of David and Christine Branton, partners, and Andrew Branton, Transport Manager, represented by Scott Bell of Backhouse Jones solicitors

4. Issues

The public inquiry was called at the request of the operators and following notice that I was considering 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)(b) - Contravention of a licence condition to notify changes in management ownership

• 26(1)(e) - Statement of intent to abide by any conditions

• 26(1)(h) - Material Change:

• 27(1)(a) - good repute, financial standing, access to a Transport Manager who meets the requirements of Schedule 3

• · 28 – Disqualification.

Due to the issues identified below, Andrew Branton was called in his position as Transport Manager for me to consider whether I should make a direction under section 27(1)(b) preventing him from relying on his Certificate of Professional Competence.

In respect of the application, it was for the applicant to satisfy me that the statutory criteria are met under section 17 and specifically by reference to the following sections:

• 13A(2)(b) – good repute

• 13A(2)(c) – financial standing and by reference to 13D to support maintenance

• 13A(3) – Transport Manager who meets the requirements of Schedule 3

• 13C(4) – satisfactory facilities and arrangements for maintaining the vehicles etc. in a fit and serviceable condition.

At the outset of the hearing Mr Bell indicated that the variation application was no longer pursued. An application for a new licence has now been lodged in the name of a connected entity, Willow Tree Potatoes Ltd.

The operator was directed to lodge evidence in support by 17 October 2022, including financial, maintenance and other compliance documentation. All the financial documentation is in the names of WD & CE & AJ Branton.

5. Determination

This case started with an application to increase authority on a Standard National Goods Vehicle Operator’s Licence to 4 vehicles and 6 trailers. NatWest statements were provided in support of the application covering the period between 13 August 2021 and 3 September 2021 (21-days only). The statements were in the name of WD & CE & AJ Branton, suggesting a change in the partnership.

The Office of the Traffic Commissioner raised the apparent change in entity with the addition of A J Branton. The responses on behalf of the operators admitted that the appointment of Andrew to the partnership in 2004 had not previously been communicated. They indicated that:

“the only Clauses which deal with determination of the Partnership are Clause 13 (retirement of a Partner – which hasn’t happened) and Clause 14 whereby on termination of the Partnership the affairs thereof shall be wound up in accordance with the Partnership Act 1890. The Partnership has not been terminated, has not been wound up in accordance with the Partnership Act and so it is continuing as provided by, and in accordance with, Clause 1 of the old Partnership Agreement.”

“When Andrew was admitted as a Partner, he and his parents all agreed that the Partnership would continue and that he would become liable for a proportionate share of the then existing liabilities and obligations (whether contractual or statutory) of the Partnership. The simple Partnership memorandum recording his admission as a partner to the existing and continuing business, in our view, provides express evidence of that agreement. Even if that were not the case, we do not agree that the law requires that continuation of a Partnership must be (and can only be) documented in writing. It is a principle of the Partnership Act 1890 that the Partners are free to agree between themselves whatever provisions they like. Indeed Section 27 PA 1890 states at subsection (2): “(2) A continuance of the business by the partners […] without any settlement or liquidation of the partnership affairs, is presumed to be a continuance of the partnership” The clear agreement and intention between Andrew Branton and his parents when he was admitted as a Partner was that the business continued uninterrupted and it does so to this day. Whilst this was in fact express and documented by memorandum signed at the time by all three of them, it is also inferred by conduct and course of dealing since that time. It is our strong view that that there has been no change of entity requiring a new Licence Application.”

Nevertheless it was suggested that they agreed for the Partnership to continue and that Andrew would become liable for a proportionate share of the then existing liabilities and obligations (whether contractual or statutory).

However, this had been queried with the partnership upon receipt of the continuation checklist in 2018, which referred to Andrew Branton as a partner. The operators then responded:

“The Operators License renewal I posted did contain a clerical error. The Operators License we hold in the name of WALTER DAVID & CHRISTINE ELIZABETH BRANTON does NOT contain a change of entity, ie ANDREW JAMES BRANTON is NOT a partner in this name. Please note there are NO changes therefore a new license application is not necessary. Apologises for the confusion and please continue with the renewal.”

The Deputy Traffic Commissioner reviewing this case was naturally concerned as to the veracity of that statement. On the correspondence it appeared that Andrew Branton had been appointed to the Partnership in 2004, 14 years before the statement was made and 17 years prior to the current application. No partnership agreement was provided.

The solicitor’s response confirmed an agreement involving Andrew Branton in 2004. Statutory Document No. 5 explains, the partnership did not continue, a new partnership was formed between Mr Branton and each of his parents. That was correctly declared on the initial checklist returned in 2018. Regrettably the subsequent correspondence, denying Andrew Branton’s involvement, was an inaccurate statement, risking the ability to hold a licence but that was not referred to a Traffic Commissioner at the time. No-one sought to query a response from a Caroline Wheeler of W D Branton & Willow Potatoes Ltd?

The decision of 22 September 2021 to propose refusal of the application and to put the operator on notice of the risks to the licence was not communicated by the Office of the Traffic Commissioner until the letter of 7 March 2022. A response letter was received from the instructed solicitors, Backhouse Jones, challenging the decision under ‘Partnership Law’ principles and requesting that the matter be determined at a Public Inquiry. The Office of the Traffic Commissioner failed to respond to that correspondence and that was only actioned some 4.5 months later and 11 months after the application was received.

I was not persuaded by the arguments which had been put forward by Mr Boyers of Backhouse Jones dated 24 March 2022. Section 27 of the Partnership Act 1890 would only apply to a fixed term partnership:

5.1 27 Where partnership for term is continued over, continuance on old terms presumed.

(1) Where a partnership entered into for a fixed term is continued after the term has expired, and without any express new agreement, the rights and duties of the partners remain the same as they were at the expiration of the term, so far as is consistent with the incidents of a partnership at will.

(2) A continuance of the business by the partners or such of them as habitually acted therein during the term, without any settlement or liquidation of the partnership affairs, is presumed to be a continuance of the partnership.

I was therefore satisfied that there had been material change in the entity authorised to operate under this licence. I determined to use my discretion and revoke the operator’s licence under section 26(1)(h) only, but the named partners and the Transport Manager were warned as to the potential impact on repute of the failure to check the return made by Ms Wheeler in 2018, which proved to be inaccurate, and to declare the change at the time when Andrew Branton was first appointed.

Andrew Branton had attended a two-day Transport Manager refresher course provided by the Backhouse Jones training entity on 19 to 20 April 2022 (page 143). A quick dip sampling of the maintenance records disclosed the following:

5.2 P4 WDP

• 26 September 2022 – inspection with roller brake test: 53%, 21%, 17%. It also records all 4 tyres with low tread and cut to cords. There was a driver defect report on 24 September 2022.

• 13 August 2022 – inspection with roller brake test: 61%, 23%, 28%.

• 28 June 2022 – inspection with no brake test print out but suggesting: 52%, 25%, 24%.

• 21 May 2022 – inspection with roller brake test: 54%, 23%, 20%. It also records front tyre cut to cords, driver axle airbags starting to perish. Defects were reported that day.

• 6 April 2022 - inspection with no brake test print out and suggesting 60% and 18% only.

• 24 February 2022 - inspection with roller brake test: 53%, 20%, 20%.

5.3 P111 WDB

• 10 October 2022 – roller brake test printout: 51%, 35%, 22%

• 27 August 2022 - inspection with brake test: 57% and 23% only. It also records defective number plate light, trailer coupling and brake chamber leak. Nil driver defect report on that date.

• 13 August 2022 - inspection with no brake test. It also records defective top marker lamp, cracked screen, rear tyres worn and tachograph calibration required but Nil driver defect reported dated 12 August 2022.

• 1 June 2022 - inspection with roller brake test: 49%, 17%, 25%.

• 23 April 2022 – inspection with no brake test printout.

• 12 March 2022 - inspection with brake test: 53% and 18% only.

• 26 January 2022 - inspection with brake test: 52% and 26% only.

I noted that the DtP code changed between 1 June 2022 and 10 October 2022.

Andrew Branton was advised as to the need to exercise greater scrutiny of the maintenance contractor, in order to meet the statutory duty as Transport Manager. He needs to be clear in the instructions given to Gale Force Tyres, which is attending at least fortnightly. He was also advised as to the weaknesses in the driver defect reporting system, which appears to rely on a weekly sheet. I had noted that Driver Cooke had repeatedly reported issues with a sun visor over many weeks. This apparently relates to a chip, but there is no annotation to that effect, nor has it prompted additional instructions or training. The statutory duty requires Mr Branton to exercise effective and continuous management of the transport operation.

This operator licence will be revoked with effect from 23:45 on 13 February 2022. This should allow the application by Willow Tree Potatoes Ltd to proceed provided that all checks are satisfactory. In the meantime, arrangements will be made to novate the driver employment contracts and to obtain a company card to monitor their hours.

R Turfitt

Traffic Commissioner

14 December 2022