Decision

Decision for A.D.A HAULAGE LIMITED – OF2005000

Published 15 September 2021

0.1 IN THE EASTERN TRAFFIC AREA

1. DECISION OF DEPUTY TRAFFIC COMMISSIONER MR M DORRINGTON

IN THE MATTER OF:

1.1 A.D.A HAULAGE LIMITED – OF2005000

PUBLIC INQUIRY BY VIDEO LINK

OFFICE OF THE TRAFFIC COMMISSIONER FOR THE EASTERN TRAFFIC AREA

10 AUGUST 2021

2. WRITTEN REASONS FOR MY ORAL DECISION

Findings, reasons, decision and reasons for my decision.

The operator was represented today by the sole director, Mr Covaci. He was assisted by an interpreter provided by the Office of the Traffic Commissioner. Also in attendance was the proposed transport manager Mr Sidhu.

After considering all of the evidence that I have read and heard I have reached the following findings of fact. Where an issue was in dispute it was decided by applying the civil standard of proof; the balance of probabilities.

All operators are deemed to know the advice and guidance that is in the public domain, so held the Upper Tribunal in appeal case 2021/030 MGM Haulage and Recycling Limited. That would include the DVSA publications such as The Guide To Maintaining Roadworthiness and the Statutory Documents issued by the Senior Traffic Commissioner for Great Britain.

Here the operator’s licence had been in force since 25 August 2017. It therefore cannot be said that this was a new operator at the relevant time to this Public Inquiry which is from autumn in 2020 onwards.

The operator was investigated by a Vehicle Examiner (Mr Salter) and a Traffic Examiner (Mr Pope) from DVSA. That investigation took place on 18 February 2021.

The sole director of the operator was, and is, Mr Covaci.

He is Romanian but he speaks some English.

The DVSA officers are both very experienced and they have both appeared before me on numerous occasions in the past when they have given evidence on behalf of DVSA. They are, I find, used to dealing with people who do not have English as their first language.

Putting issues of language to one side, the vast majority of a DVSA investigation is undertaken from the data itself; either the tangible documents or the digital documents or digital data. It is from that that the majority of initial findings are made.

In this case there were clearly some issues relating to the language barrier but when Vehicle Examiner Salter states in his conclusion that “This is probably the worst case of Operator ignorance that I have witnessed in 27 years of working with DVSA as a Vehicle Examiner” I am bound to take notice.

Equally I am bound to take notice of Traffic Examiner Pope scoring the operator 37 points (the second highest score I have ever seen in 13 years as a Deputy Traffic Commissioner). Only 11 points or more are needed to refer a case to the Traffic Commissioner.

From all of the evidence I have seen and heard today I am satisfied, on the balance of probabilities that:

(a) This operator was using an unauthorised operating centre for a significant length of time because the detail given by Traffic Examiner Pope (page 52) about this issue is such that he must have been told what he recorded there to be able to say what he said. The operator’s response to this (page 57 of the bundle) is also in keeping with what the Traffic Examiner wrote on page 52. Those two documents sit together. What does not sit with them is the operator telling me today that it was only a matter of hours that the vehicle was parked where it should not have been due to his car breaking down. That is a totally different account to what is said at pages 52 and 57 of the bundle. Section 7 of the Act was therefore breached on many occasions (from at least November 2020 until 18 February 2021 when DVSA investigated) and this happened when the Traffic Commissioner had not been notified and no application was made for a new operating centre. All beaches to section 7 of the Act are an offence. I therefore find that offences under section 7 of the Act occurred on a significant number of occasions.

(b) Road safety critical defects were found between Preventative Maintenance Inspections (“PMIs”) at the time of the DVSA investigation. I therefore find that the vehicle was in service on the public road with those road safety critical defects present. Road safety was compromised as a result. The vehicle was being operated when it was not in a fit and roadworthy conditions.

(c) The fact that the PMI sheets were showing this meant the operator should have been aware of it and done something to stop it from happening, for example far more frequent/regular PMIs. That clearly did not happen.

(d) A road safety critical defect was identified by Vehicle Examiner Salter at the inspection that he undertook on 18 February 2021. The photographs in the Public Inquiry bundle at pages 146 onwards says it all. As a result, an immediate prohibition was issued, and it was “S” marked. The “S” denotes a significant failure in maintenance. I find there was a significant failure in maintenance and again road safety was seriously compromised by the mechanical state of that vehicle.

(e) In order to have an immediate prohibition such as this removed the vehicle must have the defects repaired and it must also pass an MOT. There is no exemption for that requirement. Until the prohibition was removed the vehicle was not allowed to be used on any public road save for taking the vehicle to and from a pre-booked MOT.

(f) This prohibition was not removed until 04 June 2021. The removal notice is at page 183 of the bundle.

(g) Automatic number plate recognition camera checks were undertaken for the vehicle operated by this operator. The results of this appear at pages 173 onwards in the bundle.

(h) The check was only undertaken for one day, namely 13 May 2021. Eight “hits” were recorded (page 175) at different times. The photographs appear at pages 177 onwards and show that at each time the vehicle weight was different. The gross weight is also shown to be above the maximum permitted gross weight of the vehicle (which is 32 tonnes). I see no reason to doubt the under-road automatic weighing technology used by DVSA. There is no persuasive evidence before me to show that it was not working properly at the time. What it does show is that the vehicle was not being driven empty. It shows the vehicle was laden; in other words that it was being operated.

(i) Therefore, the vehicle was being operated whilst still subject to an immediate and “S” marked prohibition.

(j) Only 13 days later, on 24 May 2021, the vehicle was presented for its PMI. I initially wondered why I had four PMI sheets for that date and then I realised it was because it took four sheets to manually record the 38 defects that were identified and rectified. Many of those defects are road safety related and many are also defects that the driver should have spotted. I noted it took from 24 May 2021 until 04 June 2021 for the defects to be rectified so that the roadworthiness declaration could be signed.

(k) This is truly shocking because I find that when the vehicle was spotted with the ANPR cameras on 13 May 2021 (and it was, I also found, being operated then), many or all of those defects identified at the PMI on 24 May 2021 would have been present. That means that the vehicle was not only being operated in contravention of the prohibition, but it was also operated when it was unroadworthy and so again road safety was compromised and put at risk.

(l) The proposed transport manager accepted that the vehicle had been operated on other days, not just 13 May and this only stopped when he became aware of the prohibition that was in place.

(m) The operator operated without a transport manager from November 2020 until the present and at no time has there been a request for a period of grace. I see no persuasive reason to depart from the date given by DVSA for this happening.

(n) The operator failed to notify the Traffic Commissioner that he no longer had a transport manager.

(o) The operator breached the conditions on its operator’s licence.

(p) The operator breached the undertakings on its operator’s licence.

(q) The sole director, Mr Covaci, failed to exercise any, or any effective management control to ensure compliance.

(r) There have been some improvements made since the proposed transport manager started to help from April 2021. They include ensuring the vehicle is fully roadworthy, proper planning of maintenance, better oversight of driver defect reporting, regular and thorough analysis of driver’s hours and working time. The operator is given credit for those things.

2.1 Balancing exercise.

I have given the operator as much credit as I can give to it. Looking at the operator as it appears before me today, and after undertaking a careful balancing exercise, I still find that the negatives significantly outweigh the positives. Regulatory action is required.

2.2 Statutory document number 10, Annex 4 consideration.

Repeating all of my findings, and after giving the operator as much credit as I can give to it, I find the entry point for regulatory action to be in the “Severe to serious” category but more in the “severe” than the “serious”.

2.3 Good repute of the operator.

I have asked myself the Priority Freight question, but this is a case where the non-compliance stems from the acts or omissions of the sole director, Mr Covaci, and there is very little tangible evidence before me to show that he is capable of being compliant in the future. I simply cannot trust him given what has happened before and by that, I mean right up to 13 May 2021 when he was clearly operating in contravention of the immediate prohibition and when road safety was also put at risk. Repeating all of my other findings I answer the Priority Freight question in the negative; I do not trust the operator to be compliant in the future. For the same reasons, despite the credit that I have given to the operator, I answer the Bryan Haulage question in the positive; the conduct of this operator is such that it ought to be put out of business. It is entirely proportionate to find that this operator has lost its good repute. It is therefore a mandatory requirement that I revoke this operator’s licence.

2.4 Discretionary powers.

Repeating all of my findings again, and after giving the operator as much credit as I can give to it, I find that it is proportionate to revoke the operator’s licence under my discretionary powers pursuant to sections 26(1)(a), (b), (c)(iii), (f) and (h) of the Act.

2.5 Orders of revocation

All orders of revocation will take effect at 2345 hours on 10 September 2021.

2.6 Consideration of disqualification.

After giving this operator as much credit as I can give to it, I have stepped back from disqualifying this operator, but only just. I do think that the breach to the prohibition notice was deliberate, but the other non-compliance was, I think, down to total ignorance or reckless behaviour but not a deliberate act. No order is made under section 28 of the Act.

2.7 Application to add the proposed transport manager

I have granted the application made by Mr Sidhu to be specified on the operator’s licence as the transport manager. This is so the lack of professional competence can be regularised before the licence is revoked and is for no other purpose.

Deputy Traffic Commissioner Dorrington.

10 August 2021.