Decision

Decision for Bunny Transport Limited (OF1133611) and Glossie Ltd (OF2030101)

Updated 7 December 2020

In the Eastern Traffic Area.

Decision of the Traffic Commissioner for the East of England.

1. Background

Bunny Transport Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 5 vehicles only. The Directors are Carol Ann Grayling (appointed 24 July 2014) and Harley Earl Grayling (appointed 1 May 2015).

There is one Operating Centre at 40 Harvest Drive, South Lowestoft Industrial Estate, Lowestoft NR33 7NB. There are three declared contractors showing on the licensing record: Ray Goudy Trailer Repairs (which I was told had not been used for a period), In-house by H Grayling, and H B Commercial Ltd, undertaking Preventative Maintenance Inspections of vehicles at 8 weekly intervals.

There is a condition on that licence: that the director of Glossie Ltd, Robert Brow, shall have no involvement with Bunny Transport Limited without prior written referral to the Traffic Commissioner by the company director(s). Ms Grayling indicated to DVSA that she was unaware of this restriction on the operator’s licence.

Glossie Ltd seeks a Restricted Goods Vehicle Operator’s Licence authorising 2 vehicles only, which was received on 20 January 2020. The Director is Mr Robert Brow. The Company Secretary is Carol Grayling.

There is one proposed Operating Centre, again at 40 Harvest Drive, South Lowestoft Industrial Estate, Lowestoft NR33 7NB. The application proposes that vehicles and trailers will be inspected by HB Commercial Ltd at 8 weekly intervals

Glossie Ltd previously held OF1131077, which terminated in January 2020 when continuation was not sought, through non-payment of the fee.

Records indicate that Mr Brow had interests in OF0231857 as sole Director of Melport Trading Ltd until the operator failed to renew that Restricted licence authorising 3 vehicles; OF1011831 as sole Director of CS&G Plant Hire Ltd, which was revoked in July 2014. That was not declared on this application form.

2. Hearing

The operator was notified on 5 June 2020 of the intention to list for Public Inquiry. The hearing was delayed by the pandemic. The Public Inquiry was listed for 29 July 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Ms Grayling; the applicant was present in the form of Mr Brow; neither was represented. The Traffic Examiner Ms Susan Lee attended in order to review up to date records.

3. Issues

Correspondence was sent to Bunny Transport Ltd on 13 March 2020 expressing concerns around compliance. Ms Grayling responded on 26 March 2020 by requesting a Public Inquiry. The Public Inquiry was called for me to consider whether there were grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(a) - whether the operator is operating from an unauthorised operating centre
• 26(1)(b) - whether the operator has breached conditions on the licence, specifically whether there was a failure to notify changes to the Operating Centre, and the availability of finance
• 26(1)(e) - whether statements of intent have been complied with, specifically that vehicles when not in use would normally be kept at the operating centre at Unit 40 Harvest Drive, Lowestoft, NR33 7NB.
• 26(1)(f) - whether the operator has not honoured the undertakings signed up to when they applied for their licence, namely that they would observe the rules on drivers’ hours and tachographs and keep proper records.
• 26(1)(h) - whether since the licence has been issued there has been a material change in the circumstances of its holder, namely that they may no longer have sufficient finance as required under the terms of the licence, and that they may no longer be fit to hold an operator’s licence

Correspondence was sent to the applicant on 11 March 2020 indicating that I remained to be satisfied that the statutory criteria were met. The Public Inquiry was listed to allow the applicant, Glossie Ltd, opportunity to pursue its application and specifically in relation to the following:

• Section 13B - whether the applicant is fit to hold a licence
• Section 13C(2) - whether the company has satisfactory arrangements to comply with the law regarding driver’s hours
• Section 13C(4) - whether the company has satisfactory facilities and arrangements for maintaining the vehicles in a fit and serviceable condition
• Section 13C(5) - whether the company has an operating centre which is available and suitable for that purpose
• Section 13C(6) - whether the company has an operating centre which is sufficient for all vehicles under the licence
• Section 13D - whether the company has sufficient financial resources to ensure that vehicles are maintained in a fit and serviceable condition.

At the conclusion of the hearing I reserved my decision, which I produce now.

4. Summary of Evidence

A map and photographs of the site were produced in advance. I reject the operator’s suggestion that there is sufficient capacity to accommodate 14 vehicles, given the size and topography of the site. The dimensions at the entrance are clearly not those of the gateway but I was satisfied that it might accommodate 5 vehicles. I was concerned by photographs suggesting that another business, namely ‘Camel’ was also parking HGVs at that site.

On 12 December 2019, vehicle AY05GXR was stopped by DVSA whilst being driven by Stephen Nicholls. He did not have a valid CPC qualification at the time. The vehicle was registered to Glossie Ltd (as confirmed in interview and at page 78 of the brief) but was displaying a disc issued to Bunny Transport Ltd.

In a statement dated 19 December 2020, Traffic Examiner, John Russell, describes the stop. The Driver produced two collection notes for that day from Tarmac Trading Ltd. He confirmed that the vehicle was laden with scalpings to be tipped in a driveway in Bury St Edmunds. The Driver could not produce a Driver Qualification Card and records confirmed that he did not hold a DCPC. In interview under caution he changed his response from saying that he was self-employed to working for Bunny Transport. When he was pressed on that and about payment of his National Insurance, PAYE and who issued instructions to him, he declined to answer.

Traffic Examiner, Susan Lee, telephoned the operator on 9 January 2020 and arranged an appointment to visit. On 20 January 2020, the applicant, Glossie Ltd, lodged its application.

On the Traffic Examiner’s evidence, she then visited Bunny Transport Ltd on 22 January 2020 (page 49/29), as arranged. On arrival, Ms Lee could not locate the operator (photographs at page 57). She was told by the neighbouring businessman that “the site had not been used for approximately 5 years”. Ms Grayling was not present. When Ms Grayling arrived in a vehicle displaying ‘Camel’ livery she suggested that the interview take place in her van. Ms Grayling later indicated that ‘Camel Sand and Gravel’ whose details were displayed at the Operating Centre is an aggregate company based in Ipswich. She failed to disclose that this is Mr Brow’s sole trader business.

The operator supplied photographs of the Operating Centre with the gates open, immediately prior to the Public Inquiry. The five photographs appear to show in scope vehicles in the livery of ‘Camel’. One of them displays registration number AV52 KEK. The vehicle list at page 6 of the operator’s bundle shows that vehicle to be specified on the Operator’s Licence issued to Bunny Transport Ltd. It is registered to the applicant, Glossie Ltd, at its registered address. It only emerged in evidence that Camel Sand and Gravel (whose livery was shown in the photographs of the site), is one of the businesses in which Mr Brow has an interest.

Ms Lee did not find the suggestion to interview Ms Grayling in her vehicle or in an adjacent café to be appropriate. The interview had to be rearranged. It was conducted under caution on 14 February 2020 with Ms Grayling as a representative of the operator. In evidence at the hearing it emerged that Ms Grayling had covertly recorded at least part of that interview on her mobile telephone.

The record of interview records that Ms Grayling denied that Mr Nicholls was employed by the operator. She admitted that he was driving the vehicle on business for Carpark Surfacing Grids Ltd and that he had driven the vehicle at other times under grandfather rights. Even on the version provided by Ms Grayling, her answers were evasive and misleading around Mr Nicholls’ employment on that day. At the Public Inquiry she claimed that Mr Nicholls works for this operator in a self-employed status but that later changed to a suggestion that he invoiced through Carpark Surfacing Grids Ltd, for which Mr Brow is a Director and Ms Grayling is the Company Secretary. At no point was this drawn to the attention of the Examiner. The operator told the TE that she did not charge him, referring instead to the vehicle belonging to someone else. I heard evidence from both Mr Brow and Ms Grayling about the different types of work carried out by the different business referred to. Tarmacing was referred to in the context of Carpark Surfacing Grids Ltd and Camel. Ms Grayling’s discomfort at cross-examination on this point was not lost on me. In interview she claimed that she looked at licence cards “every 4 or 5 months”. Confusingly she then asserted that Mr Nicholls did not need a DCPC but that the operator later paid for him, despite the fact that he was not employed. In evidence I was told something different again, that Mr Nicholls drives 16-20- hours a week for this operator. She seemed oblivious to current HMRC guidance on the employment of drivers.

Ms Grayling claimed that the vehicles were rented from the applicant, Glossie Ltd. Invoices were produced for August to October 2019 (page 81) but could produce nothing for any other period. She also stated in the interview under caution that “we all use the vehicles, they are open, we all use the vehicles” with a similar answer appearing in the transcript she produced. In her unsigned letter of 22 April 2020 (page 116) Ms Grayling states that vehicles are not left open and the keys are not left on site, but in evidence it was confirmed that they have been distributed to non-employees.

Ms Lee undertook an assessment of the operator’s compliance systems and identified the following, in addition to concerns around the use of the Operating Centre:

• no system in place to check driver Licence
• no system in place to check Driver CPC
• no control card until after the visit and had not locked in 1 of the vehicles.
• no downloading of Tachograph vehicle unit and no system for checking downloaded data
• no downloading of Driver Cards
• no effective system in place for driver infringement notification.
• no effective system to monitor Working Time Directive compliance
• no effective control of who drives vehicles specified on Operator Licence
• no effective journey planning in place.

Ms Grayling made a written response to the Traffic Examiner’s findings on #17 March 2020.

Ms Grayling denies some of the Traffic Examiner’s evidence. She has produced an additional record, although not all in Question and Answer form. I have registered the content and what appears to be a response to the TE questions which go to completing a Traffic Examiner’s report on compliance. She noted the presence of a ‘John’. (That would appear to be Traffic Examiner John Russell.) She contests the scoring used by the Examiner on the basis that sand could not be roped down, that it was suggested that only Ms Grayling’s driver’s licence was relevant, that enquiries had been made of a training company to clarify the DCPC requirement. She refers to HB Commercials, the maintenance contractor, undertaking weekly downloads of Vehicle Units and driver cards, going forward, whilst telling me in evidence that she was unhappy about the maintenance and production of inspection records. Ms Grayling indicated that she works no more than 40 hours per week but that she may keep thinking about work for longer. There is comment made about the Traffic Commissioner, presumably me. Ms Grayling suggests that she was not asked for digital data but needed a letter from the Examiner setting out everything required. The emails, subsequently produced by the Examiner, appear to contradict that assertion. There was no evidence of driver engagement.

In her unsigned letter of 26 March 2020 Ms Grayling claimed that vehicles have been parked at the Operating Centre but she does not say from which date. She denied admitting that the Operating Centre was not used but indicated that they were parked at a yard on Portman Close in Ipswich when not parked at the Operating Centre. In her letter to the OTC dated 24 April 2020 she claims that she was not aware of the need for vehicles to return and asks how to obtain a second Operating Centre. In evidence she admitted that the vehicle was parked when not in use, at the alternative site in Ipswich on 2 to 3 nights per week over a considerable period. However, there appeared to be some doubt even now in her mind as to what the Operator’s Licence requires. There was even a discussion regarding the capacity of the Operating Centre in Lowestoft to accommodate 5 vehicles. The fact that Ms Grayling has attempted to contact the licensing about adding that site confirms my finding that the statement of intent as to where vehicles would normally be kept when not in use, has been breached. What concerned me was Ms Grayling’s apparently selective approach to the supply of information.

The covering letter from Ms Grayling dated 14 July 2020 insists that “Mr Brow had no part in the actual running of my company” (- my emphasis). It was admitted that he does from time to time move vehicles. She also referred to hiring one vehicle. In evidence it was admitted that Mr Brow occasionally drives for the operator.

In the period of the lockdown I had sought to clarify the position in respect of driver records. To her credit, Ms Grayling cooperated with that request. I therefore saw evidence that a vehicle specified on this licence was driven by Robert Brow on 9 August 6 September, 9, 21, 25 November; 13, 20, 31 December 2019; 3, 4, 7, 9, 13, 14 January; 18, 27, 29 February and 5 March 2020. I am satisfied that this is too often and at such regularity as to be highly unlikely connected with the ‘hire’ of the vehicle to the operator. I note also the use of the same vehicle by Mr Nicholls and records for 7, 9, 10, 11, 13, 14, 16, 17, 19, 20, 23, 24, 25, 26, 27, September; 1, 16, 17, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 October; 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 28, 29 November; 2, 17, 18 December 2019; 4, 5, 6, 7, 10, 11, 12, 13, 14, 17 February 2020. I compare and contrast those records with the few maintenance records which were produced prior to the Public Inquiry.

Evidence for the public inquiry, including representations, maintenance records, tachograph discs and financial documents, was submitted. The majority were received from the Operator under cover of a letter dated 14 July 2020, where Ms Grayling refers to the return of her son to assist her. She refers to having no employees but that a self-employed contractor had access to her yard. Ms Grayling referred to her son’s Driver CPC and experienced gained working away from the operator during the last 5 years up to July 2020.

The operator received an S-Marked prohibition on vehicle AY57ARF on 23 February 2018 (page 97) due to a seized valve and tight linkage on Axel 0. It was noted that the valve would not function as intended. The Notice was not appealed but Ms Grayling originally suggested that she was not aware of it. A different version was offered at Public Inquiry. The vehicle was being driven by Gerald Torr. Mr Torr is the other Director of Carpark Surfacing Grids Ltd.

Annual test history (page 99) shows presentation of AV52 KEK, AY06 FHR, AY56 FXX, AY57 ARF at various times. The operator is recorded as having achieved a pass rate of over 90% but with a large and varied number of advisory matters being picked up at test. The records produced include maintenance contracts with Autoplant for 8 weekly inspections, dated 21 March 2018, and HB Commercials Ltd for 6-weekly inspections, dated 4 October 2018. There are invoices for:

• 7 February 2020 for a safety inspection using a decelorometer test and welding of cracks in the body,
• 20 February 2020 referring to a safety inspection and work on a side marker light,
• 18 March 2020 referring to MoT presentation and voluntary brake check,
• 24 April 2020 referring to tachograph recalibration and a safety inspection,
• 30 April 2020 referring to work on a rear brake disc and a brake test,
• 9 June 2020 safety inspection with roller brake test (Ms Grayling indicated she encountered difficulties in obtaining completed forms),
• 17 June 2020 welding.

The records that were produced, are as follows:

• 6 March 2020 Brake test print out for AY57 ARF but no secondary brake test.
• 18 March 2020, AY57 ARF, specified on 2 March 2018 – series of driver detectable defects, laden roller brake test (19 weeks since that inspection, specified 2 March 2018).
• 23 October 2019, AY57 ARF – series of driver detectable defects, decelorometer test? (21 week gap)
• 5 June 2020 Brake test print out for AV52 KEK, underweight so only achieved 42% on service brake
• 27 May 2020, AV52 KEK – series of driver detectable defects, under-laden RBT (9 weeks since that inspection – specified 1 July 2015)
• 20 February 2020, AV52 KEK - driver detectable defects, brake imbalance noted but only deceloromter test and locked (13.6 week gap)
• 25 June 2019 Brake test print out for AV52 KEK
• 23 April 2020 AY05 GXR – series of driver detectable defects, decelorometer test showing parking brake efficiency at 255% - (13.6 weeks since that inspection re-specified on this licence on 23 April 2019)
• 8 November 2019 AY05 GXR – windscreen, reference to a trailer coupling, monitor brake pads but only one efficiency reading at 57% (23.6 week gap)
• 6 September 2019 AY05 GXR – driver detectable defects, reference to a trailer coupling, monitor rear brake pads but only a decelorometer check (9 week gap).
• 13 March 2020 Brake test print out for AY58 ARF, never specified on the licence

However, I was only supplied with driver defect reports for 4 September 2019, 8 November 2019, and 24 April 2020. The only rectification shown was that the vehicle was sent to the workshop on the last occasion. Ms Grayling initially tried to tell me that vehicles had been off the road for all of the time, but after I referred to the tachograph charts, she confirmed operation during lockdown. Those charts show driving by Mr Nichols, Mr Brow and on one occasion, by her. One vehicle has been off-road but with no proper VOR.

An examination of the financial documentation submitted show transactions to and from Mr Brow, which might indicate hire payments. What I could not understand is why an operator would hire vehicles, which even Mr Brow admitted were ‘senior’ but continue to pay for extensive repairs as suggested by the few inspection forms available and confirmed by Ms Grayling in her evidence. The truth lies in the business relationship and the lack of distinction in the financial dealings Ms Grayling failed to appreciate that an important requirement of the Operator Licence is to have preventative maintenance inspections rather than just repairing defects when they arose. She allowed a situation where there was no driver defect reports.

Rather than seeing payments out, which might suggest a hire agreement I observed repeated payments in from Mr Brow in June and July, at the end of April and beginning of May. He told me in evidence that he frequently uses the operator to deliver products which he requires for the Glossie Ltd business. I note the checks carried out by Ms Lee: only AY57 ARF is actually registered to Mr Brow. The other two vehicles are registered to Glossie Ltd and yet I could find no payments from the operator to the legal owner. I was told in evidence that Mr Nicholls invoices through Carpark Surfacing Grids Ltd. I could find no obvious evidence of that arrangement in the financial evidence.

No invoices beyond the three provided to Ms Lee, were made available. Ms Grayling must have been aware that this would be an issue but chose not to supply any more. In any event it is highly doubtful that I would have been able to make much sense of those documents. I heard evidence of a blurred business relationship where Mr Nicholls might invoice through Carpark Surfacing Grids Ltd for “various things”, which would include his driving of 16 to 20 hours per week for this operator. Mr Brow confirmed that Bunny Transport delivers for that company. No invoices were available. I was told that Mr Brow drives for this operator but with no distinguishable charge. That might be set-off against hire payments for the vehicles, which in turn might be reduced against the supply of materials by the operator. I found the suggestion that the operator’s vehicles were liveried for Camel Sand and Gravel as free advertising to be highly implausible. I was told that the operator is involved in house construction and groundworks. The current project involves two 4-bedroom houses. The applicant is involved in restoration and property rental. Carpark Surfacing Grids Ltd is involved in tarmac, whilst the sole trader business supplies sand and gravel. It is clear to me that there has been a blurring between those businesses such that no invoice will ever clearly disclose the supply of services and goods. It belies the spirit if not the letter of the undertaking, which Mrs Grayling gave, in order to obtain – see the letter of 19 January 2015 (page 101).

In a letter dated 15 July 2020, which has marked similarities to the correspondence from the operator, in terms of type face and format, Mr Brow indicates that he can make no comment about Ms Lee’s findings, as he has never met her. I found the content of that letter curious given the obviously close relationship with Ms Grayling and the various business relationships between the applicant and the existing operator. His past experience of Operator Licensing was not evident in Ms Grayling’s approach to maintenance, which is perhaps strange as he considered the vehicles to belong to him.

5. Determination

Financial evidence was considered and found to meet the required sums.

There are those cases where it is sufficient to set out the evidence to describe the relevant factors. The level of ignorance suggested by Ms Grayling in interview under caution was truly concerning. She appeared to have little knowledge of the operator licence requirements, she was unaware of the responsibility for the vehicles specified on that licence, she was ignorant of where those vehicles should normally be kept, when not in use. I found Ms Grayling to have been selective in her approach to DVSA enquiries. Her inconsistency during examination also undermined her credibility.

Ms Grayling told me that she is trying her best and that she intends to purchase a new vehicle. That accords with Mr Brow’s intention to specify two of the vehicles on this application. Ms Grayling points to the involvement of her son from 1 July 2020 but he has been a Director since 2015. She assured me that record keeping would improve but has remained with a contractor who she blames for delays in maintenance and the supply of records. I noted improved driver licence checks, but she continues to allow the unrestricted access to keys by non-employees, connected with other businesses. She demonstrated little awareness of why this was an issue and has taken no action to improve her knowledge.

When I applied the initial questions suggested by the Upper Tribunal in appeal 2009/225 Priority Freight: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime I must conclude that there is little prospect. The Tribunal has remarked that actions speak louder than words. There is little positive progress to draw on and what is more, based on the evidence above, I do not trust the operator to discharge those responsibilities.

As was said in 2006/277 Fenlon:

trust is one of the foundation stones of operator licensing. Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.

I am satisfied to the civil standard of proof that I should make adverse findings under section 26(1)(a), (b), (e), (f), (h). I explored the impact of regulatory action but put frankly the management of this licence and the failure to comply with basic requirements amounts to such a risk that I have proceeded to consider the Bryan Haulage (2002/017) question. It will be obvious that, in allowing standards to fall to this level, I consider that conduct to be so serious as to require revocation. I have noted that current projects will last until October; revocation cannot await completion. I will allow until 23:45 13 August 2020 to allow the operator to make alternative arrangements but that is when the revocation will take effect.

I have considered whether disqualification is required as per the guidance in 2018/072 St Mickalos Company Ltd & M Timinis and 2010/29 David Finch Haulage. This is the first Public Inquiry for this operator but there can be no allowance for misleading the regulator. As the Upper Tribunal has recently identified in 2019/025 John Stuart Strachan t/a Strachan Haulage: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. The operator is disqualified under section 28(1) from holding or obtaining an operator’s licence for a period of 12 months. I distinguish between the position of Ms Grayling and the other Director, Mr Harley Grayling, who Ms Grayling referred to as an employee but Ms Grayling will be disqualified in similar terms under section 28(4).

Mr Brow did not assist himself or my understanding by his failure to distinguish between limited companies (in which he has an interest and acts as a Director), his personal interests and indeed his sole trader activity. That reflects the chaotic business relationships which I have described. I must be clear who is operating. The application was not assisted by the failure to declare the revocation of OF1011831, held by CS&G Plant Hire Ltd, in July 2014. The fact that Carpark Surfacing Grids Ltd (of which Steven Nichols and Gerald Torr are the other Directors) was previously known as CS&G Plant Hire (EA) Ltd, has not escaped me. However, it is the lack of distinction between businesses, compounded by the suggestion that he would continue to operate vehicles in another livery, which have been maintained in the way described above, which leads me to conclude that I cannot be satisfied under section 13B.

The application fails accordingly. The applicant or Mr Brow are at liberty to re-apply but I urge him to review his business arrangements and to ensure a clear demarcation between entities so as to avoid disappointment. He will wish to ensure that vehicles are in fact fit to be put back into operation.

RT/TC/30/7/20