Decision

Decision for Ardealu Transport Ltd (OF2034752) and Cornel Nicusor Onea (Former Transport Manager) and Vasile-Ioan Pascu (Driver)

Published 24 August 2023

0.1 In the Eastern Traffic Area

1. Traffic Commissioner’s Written Decision

1.1 Ardealu Transport Ltd (OF2034752) and Cornel Nicusor Onea (Former Transport Manager) and Vasile-Ioan Pascu (Driver)

2. Background

Ardealu Transport Ltd holds a Standard National Goods Vehicle Operator’s Licence authorising 3 vehicles and 3 trailers. The Director is Daniel Florin Moldovan. The current Transport Manager is Christopher Andrew Richard Browning who was appointed from 15 November 2022. Cornel Nicusor Onea acted as Transport Manager from 26 July 2022 to 3 November 2022. I granted a Period of Grace at the previous Public Inquiry. The application nominating Mr Onea was apparently granted under delegations with an undertaking for attendance at refresher training. A certificate of attendance confirmed that training took place on 28 and 29 July 2022.

There are two Operating Centres: MC Stennets & Sons Ltd, New Transport Office, Place Farm, Ingham, Bury St Edmunds IP31 1NQ, and Tomo Industrial Estate, Tomo Road, Stowmarket IP14 5AY. There are now three declared contractors showing on the licensing record: Chassis Cab Ltd, H B Commercials Ltd and Taylor Commercials, undertaking Preventative Maintenance Inspection of vehicles and trailers at 10-weekly intervals.

The operator was previously at Public Inquiry on 27 October 2021 when I made adverse findings under the following sections of the Act: sections 26(1)(b) condition to notify relevant changes, 26(1)(f) – undertakings (vehicles and trailers to be kept fit and serviceable, driver defect reporting, complete maintenance records, drivers’ hours and tachographs), (h) material change. The operator accepted that there were shortcomings in the maintenance of vehicles and trailers and specifically in the testing of trailer brakes. There were obvious weaknesses in driver defect reporting attributed to third-party trailer suppliers. Attempts to argue that skeletal trailer brakes could not be tested were not successful. Most trailers, if not all, were marked as 3 Axle semi-trailers, which can be tested in an unladen condition.

I found that Mr Moldovan was not entitled to rely on a qualification gained in Romania whilst he was resident in the United Kingdom. In any event he failed to manage compliance effectively and relied on the assistance of ARD Haulage Services of Bury St Edmunds. I referred to the shortcomings identified in the DVSA desk-based assessment but gave considerable benefit to the operator because of the relative age of the operation, the fact that it was the first Public Inquiry and the progress made with the involvement of ARD Haulage Services, as positive features. However, I noted that there were still deficiencies in the driver defect reporting system and the maintenance and monitoring of vehicles and trailers, with particular reference to brake testing. I was told that an audit had been commissioned from RHN consultants and was assured that the findings against Mr Moldovan and the refusal of the variation application - sections 17, 13A(2)(d) and C(4), would be sufficient deterrence.

An application to add the Operating Centre at MC Stennetts & Sons Ltd was lodged on 12 August 2022 and granted on 15 November 2022, after the application nominating

Christopher Browning was granted. Mr Browning is also the Transport Manager for IDeliver Group Ltd, which holds OF1147871.

3. Hearing

The Public Inquiry was listed for today, 23 May 2023, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator, Transport Manager and Driver all failed to appear.

On 22 February 2023, the operator made an application to surrender the licence. One of my colleagues reviewed this case but determined that the Public Inquiry should proceed, with Mr Moldovan advised to attend due to the seriousness of the alleged failings.

Directions were to be complied with by 9 May 2023. As nothing was received, my office sent an email on 11 May 2023, to chase for records. Again, nothing was received so the caseworker telephoned the operator on 15 May 2023 and again on 18 May 2023 leaving voicemails requesting a response. This was closely followed by a request for an adjournment but with no details or grounds. On Sunday, 21 May 2023, my office was supplied with an electronic receipt/ itinerary referring to travel that day. As per the Senior Traffic Commissioner’s Statutory Document No. 9 on Adjournments, I examined the circumstances leading to the application, the reasons for the application and the consequences. Reference was made to family commitments but nothing more.

I noted that the operator had made the application to surrender the licence, but Mr Moldovan was advised to attend due to the seriousness. The index evidence dated to October 2022 and the hearing was conjoined with a driver conduct hearing. As advised, there is a considerable public interest in hearings taking place on the date set and so hearings should not be adjourned unless there is a good and compelling reason to do so. I was concerned that an adjournment would further delay the hearing of evidence. The operator only notified my office after the date for compliance with Directions and failed to comply with any of the requests for documents. As the Statutory Document advises, parties who wait until the last moment to apply for an adjournment will justifiably arouse suspicion as to their motives. I remained to be satisfied that the interests of justice required an adjournment. I noted the attempts to place the operator beyond the jurisdiction and decided that the hearing should proceed as listed.

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)(a) – use of an unauthorised operating centre

• 26(1)(b) – conditions on licence to notify changes, in this case relating to the ability to hold the licence including the involvement of a Transport Manager meeting Schedule 3.

• 26(1)(c)(iii) – prohibitions.

• 26(1)(ca) - fixed penalties.

• 26(1)(e) – statements relating to where vehicles would normally be kept, who was responsible for continuous and effective management, and to abide by conditions on the licence.

• 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records, drivers’ hours, and tachographs)

• 26(1)(h) – material change;

• 27(1)(a) – repute, financial standing and a Transport Manager meeting Schedule 3.

• 28 – Disqualification.

Mr Onea was called to consider whether he discharged the requirement to exercise effective and continuous management, and therefore whether I should prevent him from relying on his Certificate of Professional Competence under section 27(1)(b) by reference to Schedule 3.

Driver Vasile-Ioan Pascu was also called to a conjoined Driver Conduct Hearing to consider whether he should be permitted to continue to rely on his vocational driving entitlement.

As suggested above, the operator was directed to lodge evidence in support by 9 May 2023, including financial, maintenance and other compliance documentation. It failed to do so. My office called the operator on 15 and 18 May 2023 and left messages, but there was no response.

5. Summary of Evidence

Vehicle EJ63 OHR (specified 27 October 2020, removed 22 March 2021) was stopped at Elmswell in Suffolk, on 7 September 2022 whilst being driven by Vasile- Ioan Pascu. The vehicle is a Daf 3 axle heavy goods vehicle with a gross train weight of 44 tonnes. The vehicle was displaying a vehicle disc issued to this operator and was loaded with a shipping container en-route from Felixstowe to Manchester.

The driver produced a Romanian driving licence and a Romanian Driver Qualification Card. The vehicle was required to be fitted with a digital tachograph. The Traffic Examiner, John Russell, downloaded raw data from the vehicle unit which, when analysed revealed anomalies between the data on Driver Pascu’s digital driver card and the vehicle unit. Mr Russell contacted the police at the Port of Felixstowe to confirm that Driver Pascu’s RHIDES card had been used on 7 September 2022 whilst operating this vehicle, but the tachograph unit had a different card inserted. This gave Mr Russell grounds to suspect that Mr Pascu might be using another driver’s digital driver card.

When interviewed, Driver Pascu produced a second Romanian-issued digital driver card in the name of Cornel Fodor. Mr Russell refers to that card having been inserted at 04:00 with a period of driving covering 107.8 km with recording to 07:27. In that period, from 07:01 to 07:25 Mr Pascu’s RHIDES card was used to access the Port of Felixstowe. At 07:40 Mr Pascu’s driver card was then inserted and a period covering 53.1 km commenced. It recorded a period of rest, beginning at 21:04 on 6 September 2022, to 07:41 on 7 September 2022 totalling 10 hours and 37 minutes, but the use of the card belonging to Driver Fodor means that there was a rest of only 6 hours and 57 minutes. Mr Pascu appeared to commence duties at 06:11 on 6 September 2022 working until 08:38 on 7 September 2022 when he was stopped at Elmswell totalling 12 hours and 9 minutes, and therefore in excess of the 10-hour daily drive limit.

Traffic Examiner, Raymond Hawkins, commenced an investigation on 24 October 2022. He found the operator’s systems to be unsatisfactory. He noted in particular:

• Driver licensing and training: Missing CPC details for Cornel Fodor, 3 driving assessments are missing from the drivers’ file. There were ‘visual’ checks of licences on induction, but no subsequent checks were conducted.

• Drivers’ hours and record keeping: records are downloaded but reports were not then properly scrutinised. There was no service level agreement or other control arrangements for agency drivers.

• Working Time Directive: tachograph data was being used and working time was being recorded incorrectly.

• No evidence of disciplinary procedures.

• The operator was using an unauthorised Operating Centre and Mr Onea resigned shortly before the visit. Mr Hawkins stated: “it is my opinion that the previous Transport Manager (Mr Cornel Nicusor Onea) had no or very minimal involvement in the operation, I would say he was in name only in order to satisfy the licensing requirements and according to the Operator he is now in Romania permanently”.

A maintenance investigation commenced on 14 October 2022 (when the Transport Manager had already departed) completed by Vehicle Examiner, Mervyn Lockwood. Compliance was also found to be unsatisfactory. He recorded that:

• the Operating centre on the Tomo Industrial Estate was not being used as the operator had moved to Stennetts Transport Ltd, without authority.

• 11 inspection records showed no brake performance test although 2 were subject to additional ad-hoc brake tests.

• On 25 occasions the roller brake print outs were missing.

• On 3 occasions the vehicle details recorded the wrong vehicle make.

• On 3 occasions an incorrect odometer reading was recorded.

• Vehicle FJ61FSV - all roller brake tests were unladen.

• Records for the two trailers showed brake test requirements not being met, despite the previous Public Inquiry.

• Driver detectable defects were identified at Preventative Maintenance Inspections where there was a corresponding Nil report.

• There was no evidence of driver defect training provided or on load security.

• The operator relied on the contractor for vehicle monitoring systems, but one of the contractors had ceased trading.

• The operator had a final failure test rate of 20%, with initial failure at 25%.

• The operator was unable to provide any evidence of systems to ensure emission control systems were working satisfactorily.

• The operator provided evidence of wheel change systems but no tyre policy. 4 of 11 records were not signed off as retorqued.

• Prohibition assessment and management was unsatisfactory: Trailer C388644 was issued with a delayed prohibition on 7 September 2022 for parking brake inefficiency and still in force; vehicle FJ61 FSV was issued an immediate prohibition on 29 September 2022 for flags etc impairing the driver’s view and a delayed prohibition as the vehicle serial number did not match the VTG6A certificate and still in force, Trailer C232880 was issued an immediate prohibition on 24 October 2022 for excessive brake travel at the nearside and a delayed prohibition for parking brake inefficiency at the nearside and still in force.

The establishment and Transport Manager requirements were subsequently addressed. However, the failure to attend the hearing without any explanation gave real cause for concern as to Mr Moldovan and Mr Onea’s approaches to compliance and regulation.

6. Determination

On the basis of the evidence, summarised above, and in the absence of any explanation to the contrary, I was satisfied that I should record adverse findings under the following sections: 26(1)(a) – use of an unauthorised operating centre, 26(1)(b) – conditions on licence to notify changes, in this case relating to the ability to hold the licence including the involvement of a Transport Manager meeting Schedule 3, 26(1)(c)(iii) – prohibitions, 26(1)(ca) - fixed penalties, 26(1)(e) – statements relating to where vehicles would normally be kept, who was responsible for continuous and effective management, and to abide by conditions on the licence, 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records, drivers’ hours and tachographs), 26(1)(h) – material change. This was a bad case made worse by the failure to attend the hearing.

The decision by Mr Onea to absent himself is not indicative of a reputable Transport Manager or someone who can meet the requirements of Schedule 3. I therefore recorded that adverse finding against his repute under section 27(1)(b). I directed that he should be disqualified from relying on his Certificate of Professional Competence. In his absence it was difficult to set an appropriate rehabilitative measure. He can seek to vary the direction but will need to appear before a Traffic Commissioner to satisfy them as to his ability to meet Schedule 3 in future.

As identified, the actions of the sole Director were an essential element in considering the repute of the operator. The failings straddled both traffic and vehicle management. As the Upper Tribunal has repeatedly stated, drivers’ hours compliance goes directly to road safety, as does the approach to maintenance. Even if the mandatory and continuing requirement for financial standing could be shown, which it was not, I concluded that it was unlikely that the operator would ensure future compliance due to the attitude of that Director, see the Upper Tribunal in 2009/225 Priority Freight. In the absence of any explanation, I deemed that the operator must be removed from the industry. The Office of the Traffic Commissioner will now seek an explanation from Mr Browning as to his position.

This is not the operator’s first Public Inquiry. I am concerned by the attempts to put the operator beyond consideration of regulatory intervention. I determined that there was a need to take deterrent action so that the operator was clear that this situation cannot continue and that other operators would understand the need to comply, as per the Upper Tribunal in 2019/025 John Stuart Strachan t/a Strachan Haulage and more recently in 2022/1227 Lineage UK Transport Ltd. I therefore disqualified the operator from holding or obtaining an Operator’s Licence for a period of two years. I made a similar direction in respect of its Director, Mr Moldovan. The revocation takes effect from 23:45 tonight.

6.1 Driver Pascu

The relevant driver legislation is set out in Sections 110-122 of The Road Traffic Act 1988. The legislation draws a clear distinction between Large Goods Vehicle (LGV) licence holders and applicants and Passenger Carrying Vehicle (PCV) licence holders and applicants.

Section 112 of the 1988 Act provides that the Secretary of State shall not grant to an applicant a LGV driver’s licence or a PCV driver’s licence unless he is satisfied, having regard to his conduct, that he is a fit person to hold the licence applied for. It is section 121(1) which defines conduct:

• in relation to an applicant for or the holder of a LGV driver’s licence or the holder of a UK licence for the Community, his conduct as a driver of a motor vehicle; and

• in relation to an applicant for or the holder of a PCV driver’s licence or the holder of a PCV Community licence, his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a PCV driver’s licence or (as the case may be) his authorisation by virtue of section 99A(1) of this Act to drive in Great Britain a PCV of any class.

The Administrative Court, on the application of Meredith and Others EWHC 2975 (Admin) 18 explained that, whilst the personal circumstances of the driver are, at the preliminary stage of consideration of fitness, irrelevant to the question of whether his conduct as a driver has been such as to make him unfit, save to the extent that those circumstances concern his conduct as a driver. Personal circumstances which go to mitigate the conduct itself (such as illness, or emergency, or momentary lapse of attention, or carelessness) will be relevant, while personal circumstances which would, in the ordinary sentencing exercise by a criminal court go to mitigation of penalty (such as loss of work, or other hardship, or the dependence of others upon the licence-holder) would not.

The Court did not go on to consider the applicability of the principle of deterrence, which was considered by the Court of Session in Thomas Muir (Haulage) Limited v The Secretary of State for the Environment, Transport and the Regions [1999] SC 86, but regulatory action undoubtedly contributes to achieving of the purpose of the legislation. I determined that matters should be dealt with holistically and proceeded to consider the future of the operator’s licence.

Driver Pascu made some admissions at interview but failed to appear to offer any assurances as to his future conduct. The conduct equated to deliberate falsification or use of a device. I therefore adopted the Senior Traffic Commissioner’s starting points to revoke the vocational entitlement and to disqualify, that will be for a period of 24 months.

R Turfitt

Traffic Commissioner

23 May 2023