Decision

Decision for C & A Freight Ltd (OF2004478)

Published 4 March 2021

IN THE EASTERN TRAFFIC AREA

0.1 C & A FREIGHT LTD – OF2004478 AND COSMIN MIHAI ION MIRCEA – TRANSPORT MANAGER

0.2 WRITTEN DECISION OF THE TRAFFIC COMMISSIONER

1. Background

C & A Freight Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 6 vehicles and 6 trailers. I was told in opening that there are no international operations. The Director is Cosmin Mihai Ion Mircea, who is also the nominated Transport Manager.

There is one Operating Centre at The Former Edda Site, Beacon Hill Industrial Estate, Botany Way, Purfleet RM19 1SR. There are two declared contractors showing on the licensing record: Renault Trucks (apparently under a repair and maintenance hire agreement) and PCL, West Thurrock, undertaking Preventative Maintenance Inspections of vehicles and trailers at 6-weekly intervals.

Mr Mircea was also the Transport Manager on the following licences:

• Cruisers Logistics Ltd (OF2017277) – from November 2018 to April 2019.

• AGM Recovery Ltd (OK2017932) from March 2019 to November 2019. The operator and Mr Mircea were called to a Public Inquiry on 6 August 2020. Mr Mircea’s repute was found to be severely tarnished. The presiding Commissioner noted that Mr Mircea’s assurances might be reviewed in respect of this operator’s licence. Written representations in respect of this hearing suggest that Mr Mircea deeply regrets the circumstances that led to him being called to that Public Inquiry in August 2020. He promptly attended a two-day CPC Refresher Course.

2. Hearing

The Public Inquiry was listed for 3 February 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator appeared by video link in the form of Mr Mircea, represented by Chris Powell of Rothera’s solicitors.

The operator was directed to lodge evidence in support, including maintenance documentation and financial evidence by 27 January 2021. I held my decision in abeyance to allow Mr Powell to make written representations and to consider the relevance of the contract with the sole customer. I allowed 14 days to lodge those representations.

3. Issues

The operator was alerted to the seriousness of its position in correspondence dated 17 November 2020. The response from Rothera’s was to request a hearing. 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)(c)(iii) – Prohibitions

• 26(1)(e) – Statement that the vehicles would be given inspections at 6 weekly intervals

• 26(1)(f) – Undertakings that: vehicles and trailers would be kept fit and serviceable, to employ effective written driver defect reporting, to retain complete maintenance records for 15 months

• 26(1)(h) - Material Change:

• 27(1)(a) – Repute, financial standing and professional competence

• 27(1)(b) – Transport Manager no longer of good repute – Article 4, Schedule 3

• 28 - Disqualification

In respect of the variation application, the onus was on the applicant to satisfy me as to the following sections:

• 17 – Variation application

• 13A(2)(b) - Good Repute

• 13A(2)(c) - Financial Standing

• 13A(2)(d) - Professional Competence - 13A(3)(a), Article 4

• 13C(2) - Drivers Hours and Tachographs

• 13C(4) – Maintenance not prejudiced by a lack of finance - 13D

The operator advertised the variation seeking to increase authority from 6 vehicles and 6 trailers to 10 vehicles and 6 trailers. It realised that this was a mistake and applied to amend the application to 10 vehicles and 10 trailers, at the hearing on the basis that all trailers are third party only and never kept at the Operating Centre. However, that variation in authority would nevertheless entitle it to keep trailers at that site. The operator decided to readvertise following the hearing but was advised that a further application was required to be lodged by 25 February 2021. Mr Powell then indicated the operator’s intention to just pursue a variation to 10 vehicles and 6 trailers.

4. Summary of Evidence

The operator was issued with an immediate prohibition at annual test on 14 February 2020 (page 65) for a front tyre on axle 1 bulging, caused by separation from its structure.

The operator then lodged a variation application on 12 June 2020 seeking to increase authority to 10 vehicles. DVSA, prompted by this application, decided to undertake an investigation by way of desk-based assessment. The assessment by the Vehicle Examiner, Michael Bales, can be found at page 53 of the bundle. It is dated 3 November 2020. The outcome was unsatisfactory, and the findings refer to the following:

• No maintenance contracts with providers

• No records or evidence of first use checks provided for trailers

• Vehicle AP67 CHJ, records only available from 30/03/20-03/08/20, specified 21 February 2020

• PMI records not completed with brake test

• Brake tests are not being conducted at every PMI

• Frequency of inspections up to 13 weeks 2 days and 8 weeks 1 day, for EU13 AOH

• Operator has failed to provide a PMI record for EU13 AOH due a six-weekly inspection for the week commencing 27 July 2020

• Weaknesses in the forward planning

• No evidence of Vehicle Off-Road systems in place

• Driver detectable defects left to the Preventative Maintenance Inspections

• PG9 issued at test, with no evidence of investigation

• Annual test failure rate

In the response dated 30 October 2020 (pages 59 to 64) and confirmed in written representations from Mr Powell, Mr Mircea referred to the use of several maintenance contractors but now limited to Renault Trucks Essex and PCL West Thurrock (MAN). He admitted that the operation provides traction only services and suggests that since August 2020 first use trailer checks had been conducted by drivers. The front of the ‘daily driver defect report sheet’ is used for tractor unit and the reverse for trailers. He indicates that AP67 CHJ was hired from Renault on 24 February 2020, which accords with the record of specification (page 5). EU13 AOH was apparently SORN and the operator referred to a screenshot from Tachomaster. Mr Mircea accepts that there were missing inspection records.

The response also indicates that Mr Mircea has instructed the current maintenance contractors to ensure that laden roller brake testing is conducted at every Preventative Maintenance Inspection and indicates recent familiarity with the Logistics UK guide on brake test reports. The response also refers to a reduction in inspection intervals from 8 weeks to 6 but is confident that the scheduled inspections took place. He accepted that there are no records to demonstrate this. He also accepted that there was no VOR record in place and only now proposes to cross refer maintenance inspection records with the driver defect reporting system. The prohibition issued at annual test was blamed on a former maintenance provider. He claims that an investigation was carried out with enquiries made of the manager at DBS Commercials. The response suggested that the tyre defects might have occurred between the maintenance facility and the ATF.

Mr Mircea completed a two-day transport manager refresher course with the RHA on 11 and 12 August 2020. This was not apparently sufficient to prevent the Examiner commenting on remaining concerns around the first use checks of trailers, brake testing arrangements, stretched PMI intervals and forward planning and little or no supporting evidence was supplied.

The representations lodged in advance of this hearing confirm the operator’s written response of 30 October 2020 and the annexed documents have now been supplied. The representations confirm that all trailers operated by the Company are third party only. However, the authority allows for a change in operations, so I am unsure what weight I would attach to an undertaking not to keep trailers at the Operating Centre. That did not add to a positive impression of Mr Mircea’s abilities.

I was provided with a copy of the contract with Purfleet Commercials Ltd for Preventative Maintenance Inspections at 6-weekly intervals, dated 24 October 2020. I also saw screenshots from the electronic forward planner and a PMI pro-forma, produced by PCL.

My consideration of the Preventative Maintenance Inspection records under the operator’s control disclosed the following: AP67 CHJ, inspected on 7 December 2020, i.e., 8 weeks and 2 days ago, referred to tyre defects with no driver report; the roller brake test suggested performance readings of 22%, 5%, and 5% representing a failure of service, secondary and parking brake systems. The inspection on 26 October 2020 referred to headlamps and bulbs, which had been reported on that date but the roller brake test recorded brake efficiency at 23%, 25% and 5%, i.e., a failure of service and parking brakes. The previous inspection on 14 September 2020 recorded brake efficiency at 86%, 36% and 36%; on 3 August 2020 72%, 44% and 42% but on 22 June 2020 only 22%, 5% and 5%. Those readings deserved investigation.

On NU20 OBZ, the inspection on 14 December 2020 (6-week gap but over 7 weeks ago now) recorded a brake efficiency at 31%, 13% and 7%, which failed across all brakes. On 2 November 2020, engine oil, a bulb and battery clamp were left to the inspection with brake efficiency recorded at 29%, 12% and 6%. On 29 September 2020, loose bolts were identified during the inspection, but brake efficiency was only 32%, 12%, and 7%. On 17 August 2020, it was only 25%, 8% and 5%. Defect reports tend to concern the tractor unit only: 23 December – two chips in windscreen,24 December – screen wash, 29 December top marker bulb.

The representations confirmed that brake tests have been conducted in an unladen condition. In evidence Mr Mircea told me that he had been advised by these main contractors that a laden brake test was only required at annual test. He has since obtained a guide to brake testing, in this case issued by Logistics UK. I have seen two email communications: 29 January 2021 with Renault Trucks and 31 January 2021 with PCL to confirm laden testing going forward. I do not find the explanation as to why this was permitted in the first place to be satisfactory. Unladen vehicles have continued to be presented for brake testing even into this year, with no response from either the contractors or Mr Mircea to the alarming imbalances recorded, usually on the service brake and up to a reading of 74%. I have no indication how a forward wheel allowance could be applied to a service-brake reading of between 32 and 25%, so as to be recorded as a pass. As I have already noted, the previous version Guide to Maintaining Roadworthiness was issued over two years ago, with the advice replicated in the latest version dated December 2020.

I saw copies of what appeared to be driver defect reports, but it was very difficult to ascertain the dates of those trailer inspections (from separate copied pages). I am satisfied that most defects on tractors were reported, although Mr Mircea’s evidence confirmed that several drivers overlooked tractor unit interior bulbs. He told me that he had carried out spot checks but admitted that the emphasis had been on tractors, whereas trailer pick and drop was more difficult to monitor. I was assured that drivers had been instructed to spend 10 minutes on a walk round at each pick up and that this was reflected in the drivers’ hours records.

My analysis of the original records showed that of all the trailers pulled by NX20 PKF between 1 and 31 December 2020, very few defects were reported by the drivers. To their credit they assiduously recorded the trailer heights. There was a recurring issue with an indicator between 13 to 16 August 2020. I was concerned to note the decision to allow the tractor unit to continue operating after damage to the off-side panel and step on 2 September, having been reported to this Transport Manager. Mr Mircea told me that this was a minor accident when a third-party vehicle hit his vehicle whilst training a new driver. The only report which indicates a thorough trailer inspection is that of Driver Campney on 18 November 2020 when he notes damage to the top of VD410444. He takes photographs and seeks to have the trailer replaced with VD410351.

I make similar observations from my consideration of the driver reports of trailers pulled by AP67 CHJ, which has been on hire since 24 February 2020. It is difficult to avoid the impression that inspections of trailers may have been treated as a tick box exercise. An email of 8 December refers to 5 driver training spaces being available: Driver Campney attended walk round training with Enterprise Transport Training on 7 January 2021, Driver Andronic attended on 12 January 2021, and Driver Moss on 17 January 2021. 6 of the 11 drivers have been trained, many in a relatively short time since their induction last year. For perhaps understandable reasons Mr Mircea was not keen to engage in on-line training.

The operator produced no evidence of engagement with the trailer owner to ensure that safety inspections are within its stated frequency. For the reasons set out I am satisfied that the walkaround check of the tractor/trailer combination is not thorough enough to discharge the operator’s responsibilities. The Guide to Maintaining Roadworthiness expects traction operators to work with the trailer owners to ensure any trailers operated fall within the owner’s agreed SI frequency and that they are roadworthy. It is best practice for the trailer owner to provide evidence for the operator that first use checks and safety inspections have been undertaken and demonstrate there are no outstanding defects reported for the trailer. It goes on there must also be a robust system in place to ensure defects identified during the walkaround check, or develop during use, are recorded and rectified before the tractor/trailer combination is operated in an unroadworthy condition.

Mr Mircea told me that the trailers were all new or nearly new, but there was no specific requirement in the contract relating to the age of trailers. The business model he described involved high volume of operation of those trailers. Mr Mircea told me that the customer was very keen on safety and that he had been told that the trailers were inspected. He could not tell me whether those inspections were carried out within his declared maintenance intervals or what those inspections entailed. He was clear that any decision on trailer maintenance was for Amazon, although drivers could refuse to take out damaged trailers (as I saw in the case of Mr Campney). Mr Mircea indicated that he would need to reread the contract. Up to the date of the Public Inquiry, he had been content to act on assurances from a Jerome van Gennep, who was described as the business coach at Amazon. As far as I could ascertain Mr van Gennep manages contractors, such as this operator, but is not involved in the maintenance of trailers. Mr Mircea has never met him in person but believes that he may be based within this traffic area, at Milton Keynes.

I became increasingly concerned by the evidence regarding the influence of the customer over the ability of this operator to meet its obligations. I was told that the application to increase authority (which had been advertised as 10 vehicles and 6 trailers only in both the local press and the statutory publication) arose because the contract with Amazon required this operator to provide traction services for 10 trailers. I had no indication as to why a contract would be awarded to an operator with a much lower authority. Nevertheless, I was told that there was a real threat that the contract would not be renewed in April, without that increase. That appeared to be based on a major assumption on the part of Amazon and yet the evidence suggested that there was no requirement to provide the operator with documentation regarding the safety and maintenance of trailers. I therefore asked for further evidence to be lodged on that issue alone.

I was subsequently provided with a copy of a letter dated 16 February 2021 addressed to Mr Mircea from a Vinay Das, who is the Senior Program Manager – Linehaul Corp, Amazon. Confusingly, that refers to Amazon UK Services Ltd, with a registered office at 1 Principal Place, Worship Street, London EC2A 2FA (Company Registration No. 03223028). However, the contractual documents produced refer to the party as Amazon Transportation Services, Amazon EU S.à.r.l., 38 avenue John F. Kennedy, L-1855 Luxembourg Seattle, WA 98109-5210, with the contract to be governed by the laws of the Grand Duchy of Luxembourg.

In answer to my queries regarding the trailer maintenance regime, the letter indicates that Amazon maintains all the UK trailers on a 10-week service interval, not the 6 weeks declared by this operator. This is confirmed within the terms of the Amazon Relay Program Policies, at paragraph 9. That document indicates that the contractor must comply with Amazon’s and any third party’s safety policies. Its EU Health & Safety Policy is appended as ‘Exhibit B’. It requires the operator to provide, operate, maintain and be responsible for, at your expense, all equipment, vehicles, power units and trailers required to perform the Services under the Agreement except for Services provided under the ATS Dedicated Sub-Program where Amazon provides what is termed as the Trailer Asset. It does not appear to consider its own duties. Mr Das refers to the use of in-house fleet management software which is integrated with TIP’s system for scheduled maintenance. This is intended to provide for ‘checks and balances’ with particular emphasis on walk around checks. The letter also indicates that there is ‘a front line fleet operations team that review maintenance plans of the fleet every day standing down the trailers, issuing work orders to TIP, and tracking them to closure directly via this system’.

The written representations refer to several urgent meetings with Amazon following the hearing. It was only then identified that the third-party trailers pulled by the operator continue to be inspected at 10-week intervals and the licence declaration has just been amended. I am told that there have been encouraging and positive discussions to explore ways in which the operator can be assured of 3rd party trailer roadworthiness. Mr Powell repeats the evidence given at the hearing. The operator has been informed that there is a yard marshal at Amazon collection sites who can ‘access via tablet to certain trailer maintenance details’. I am asked to accept a situation where a trailer will not be released if the trailer is not up to date with its safety inspections. The Company commits to putting in place an effective procedure in line with the Guide to Maintaining Roadworthiness, but that does not accord with the Amazon contract documents.

Mr Powell attempted to lodge additional documentation after the hearing to demonstrate recent laden brake tests, despite a clear indication that any representation should be limited to the contractual relationship with its customer. The brake tests resulted in passes but it remains the case that the declared contractors are yet to provide an explanation for the unsatisfactory brake test practices.

In operating Amazon’s Trailer Assets, the operator is required to ‘ensure that the maintenance arrangements that you have declared to the relevant traffic authorities is consistent with Amazon’s then current inspection intervals, or is updated by you in the applicable vehicle operator licensing system as required to match Amazon’s then current inspection interval. Amazon’s safety inspection interval in relation to Trailer Assets is currently 10 weeks’. That document does not appear to disclose what is set out in the letter to Mr Mircea, namely that there will only be one metred brake roller test per year, carried out by TIP Trailer Services UK Limited. In addition, that contractor carries out a static brake check at other inspections, by checking the brake components. The letter claims that the processes are drafted in line with the DVSA Guide to Maintaining Roadworthiness.

The arrangements described appear to be inconsistent with that guidance and specifically:

4.1 5.3 Braking performance assessment

As per the annual test, every safety inspection must assess the braking performance of the vehicle or trailer. It is strongly advised that a calibrated roller brake tester (RBT) is used at each safety inspection to measure individual brake performance and overall braking efficiencies for the vehicle or trailer to the annual test standards…. . In the case of trailers, an Electronic Braking Performance Monitoring System (EBPMS) may be used as a means to assess trailer-braking performance and provide a brake performance value while the vehicle is in service (for further details see EBPMS section).

Brake testing should be undertaken with the vehicle or trailer in a laden condition in order to achieve the most meaningful results; however, due to basic design limitations or restriction caused by the type of cargo normally carried, this is sometimes not possible. Further guidance regarding the use of RBT’s can be found at this link: www.gov.uk/government/publications/the-heavy-vehicle-braketest- best-practice-guide

A printout of the brake efficiency test from either the RBT or decelerometer should be attached to the safety inspection record. If the brake test equipment cannot produce a printout, efficiency results must be recorded by the inspector on the safety inspection report.

I cannot help but note that the example of a trailer inspection sheet provided through the operator records trailer brake readings of 32% on the service brake and 13% on the parking brake as against pass values of 45% and 16%, respectively.

I have been through the other documentation provided such as the Amazon Freight Partner Program Terms of Service and the Amazon Freight Partner Program Policies. The latter policies apparently dictate performance under the contract and in particular use of Amazon Trailer Assets, Service Standards, and On-road Safety Standards. Under the heading of ‘Safety Disclosure’ the operator is required to register with a safety monitor but I can find no reference as to how an operator would meet the recommendations around traction services and third-party trailers, when the trailer owner should be providing evidence to the operator of first use checks and safety inspections.

Mr Das was asked to comment on “What would be the effect on your work for Amazon if the application to increase to 10 vehicles were refused, and separately, what would be the effect on your work for Amazon if your fleet were to be reduced from the current 6?” His response indicates that contractors receive contracted loads from Amazon commensurate to the number of trailers they have capacity to use. In the event of a reduction (or increase) in the number of trailers, it is likely that the number of contracted loads would be adjusted accordingly. However, the document entitled ‘Welcome to the Amazon Committed Linehaul (ACL) Programme’ – which describes itself as a summary of ‘the main characteristics and requirements of ACL Programe’ including the policies to which I have been referred includes the following bullet:

• You will have a minimum of 10 tractors dedicated to the operation. We will consider a start with less tractor and help you create a plan to build up to 10.

The additional submissions lodged by Mr Powell confirm that the operator is part of the Amazon Committed Linehaul Program. I am told that the operator spoke with a representative of Amazon following the hearing to seek further guidance on the effect of a refusal of the application, and the effect of a regulatory action against the existing licence. The operator was informed that there are a number of factors that Amazon will look at to determine whether the Company’s membership of the programme will be renewed. The Company has not received any certainty on this point.

There are other bullets, for instance referring to alternative Amazon branded tractors to be procured from third parties, on preferential terms, and after an initial pilot and by Quarter 1, and to requirements to increase operating hours during peak by using at least 40% of the tractor units 24 hours a day through double manning. The summary refers to the need for what it terms ‘an approved heavy goods vehicle operator licence’ but goes on to display a degree of ignorance regarding those requirements. It refers to the licencing authority as the Driver and Vehicle Standards Agency, the need for a ‘transportation manager’ and parking space for tractors only. It refers to regular audits from Amazon to ensure compliance with the programme requirements, but I cannot see how that could include compliance on the operator licence requirements.

5. Determination

I am satisfied that there is sufficient evidence to make adverse findings under the following sections: 26(1)(c)(iii) – for the single prohibition, 26(1)(e) – relating to inspection intervals, 26(1)(f) – in breach of undertakings to ensure that vehicles and trailers are operated in a fit and serviceable condition, to employ an effective written driver defect reporting, to retain complete maintenance records for 15 months.

The written representations refer to cooperation with the Office of the Traffic Commissioner, which is expected of any operator. I note the operator’s response to the DVSA and give some credit there. I have already noted the attendance of drivers at CPC modules on driver walk around checks and load security. I refer to my assessment of the driver defects reports and what that says about the standard of walk round.

Representations on behalf of the operator claim that the operator recognised the issues with the maintenance contractors in June 2020 and took steps to rely on two main dealers. The operator reduced its inspection frequency from 8 to 6 weeks at the same time. This was in advance of the DVSA investigation but as the evidence demonstrated there was never an occasion when the third-party trailers were inspected at the declared frequency. It never occurred to Mr Mircea to even check before the Public Inquiry.

Mr Powell describes the operator as relatively new, but it has been operating since 2017. I accept that it has no other regulatory history beyond the single prohibition notice issued at annual test, but there appears to be little excuse for the operator licence requirements to be forgotten or overlooked when the soler Director holds the Certificate of Professional Competence.

It was only following the DVSA assessment, that the operator arranged for its tractor units to undergo roller brake tests at each inspection. I am told that Mr Mircea raised the issue of unladen tests with the providers. I can give little weight to regular rolling road brake tests, in an unladen condition. The response to Examiner Bale suggested that there had been long-standing issues with brake testing. Mr Mircea assured the Examiner that there would be ‘laden roller brake testing conducted on every PMI and a copy of the print-out be provided to the company for inspection’. That was only implemented for the tractors after the hearing. To that date Mr Mircea was content to rely on the views of his contractors despite the assurances given to DVSA. It is suggested that Mr Mircea is not mechanically qualified. I do not see how that prevented him from referring to the DVSA Guide to Maintaining Roadworthiness and the accompanying brake guidance.

The operator has already reduced the Preventative Maintenance Inspection intervals to 6 weeks, but this does not extend to trailers, which have remained wholly within Amazon control. I have noted the single failure at annual test. That contractor tried to blame the 1-mile journey between its facility and the ATF, for the serious tyre deficiency. The operator no longer relies on that contractor.

I have seen some evidence of vehicle inspections, driver defect reporting and a wheel, but I reject the suggestion that the operator has now regularised the position, particularly with regard to 3rd party trailers. The drivers have undergone driver CPC modules on driver walk around checks and load security, and certificates have been provided. The representations refer to a robust first use trailer inspection procedure since August 2020, but the operator simply cannot assert that its processes will ensure the roadworthiness of third-party trailers when it does not have access to maintenance documentation and those trailers have not been the subject of thorough brake testing. The suggestion that a driver might ask a ‘yard marshal’ to access a tablet at a pickup point does not equate to effective and continuous management.

My factual findings above confirm that the operator has been slow to respond even to the date of the Public Inquiry and without reference to the published guidance on brake testing. There has been some recent training to improve driver efforts but the impact has yet to be evidenced in the maintenance documentation and will require effective management. I have already set out my concerns in respect of the trailer brake testing, which has yet to be addressed. In those circumstances the suggestion that this case falls within a Low to Moderate regulatory starting point is fanciful.

I was offered undertakings for Mr Mircea to urgently meet with Amazon as the basis of a robust system for trailer compliance under this licence, to then be notified to OTC. I was also offered an undertaking for laden brake tests going forward but a similar assurance was offered to the Examiner. The operator understands this would need the previous advice to be addressed by the maintenance contractors. The fact that those undertakings are necessary illustrates the difficulty in reaching a positive view on the operator’s ability to ensure future compliance, the question posed by the Tribunal in 2009/225 Priority Freight. I am not assured by a situation where the operator is not even clear about the location of the entity with which it has contracted. I have referred to the trailer brake test result, which was produced. My reading of the terms of the contract is that, even if it were to be presented so it would pass, a metred check of trailer brake performance would only occur once a year, in addition to the annual test. Enforcement of the contract terms would have to be pursued through the Courts of Luxemburg.

The written representations refer to the single customer and claims that the operator is entirely reliant on that contract. That is its choice, and commercial arrangements cannot be allowed to take priority over operator licence requirements, no matter the size of the client or the contract. Based on my factual findings and the ongoing issues I remain to be satisfied that the areas of concern identified have been fully addressed. The readiness of the sole Director and Transport Manager to have the manner of its compliance with operator licence requirements dictated to it by a customer has placed its repute and professional competence at real issue.

It has been a long-established principle that Transport Managers must possess more than just a qualification and must display knowledge and confidence to manage the transport operations (2014/058 Angus Smales trading as Angus Smales Eventing). The Tribunal in 2014/050 Andrew Harris trading as Harris of Leicester, explained the relevance: “Given the importance attached to operators complying with the regulatory regime and given that transport managers must: “effectively and continuously manage the transport activities of an undertaking holding an operator’s licence”, it seems to us that whether or not an individual has the character, personality, ability and leadership qualities to ensure compliant operation as an operator or to effectively and continuously manage the transport activities as a transport manager is a factor which can, properly, be taken into account when assessing good repute.” . Miss Bell gave a clear warning in her decision of 12 August 2020.

The good repute of this operator hangs by a thread. It needs to take control of its operations and compliance with its operator licence. If I am to be persuaded to allow this licence to continue, it cannot be with Mr Mircea acting as the Transport Manager. Mr Mircea’s performance has been reviewed and it has been found wanting. The Transport Manager attended a two-day Transport Manager Refresher Course in August 2020 and yet the above non-compliance continued. That necessitates a finding against his repute as per the Tribunal in 2015/049 Matthew Reynolds. I make that finding under section 27(1)(b). Pursuant to Schedule 3, he will be disqualified from relying on his Certificate of Professional Competence until he has worked with an experienced and sufficiently robust CPC holder, who can manage the traction of third-party trailers, for a period of 12 months and I am satisfied that he can assume those responsibilities again. The written representations suggested that Mrs Mircea might be appointed as a second Transport Manager and she is booked to sit the Transport Manager CPC exam on 12 March 2021. She will not have the requisite experience to assist Mr Mircea in rehabilitating his good repute as a Transport Manager. On that material change under section 26(1)(h), I make the adverse finding under section 27(1)(a) to allow a Period of Grace of 2 months to appoint a suitable replacement Transport Manager.

In hearing I was told that the provision of future work was contingent upon the operator being able to operate 10 vehicles and 10 third-party trailers. The error in its application made that impossible. As Mr Powell accepted, issues of proportionality are limited to my consideration of the existing licence and authority, in line with the Court of Appeal decision in Crompton t/a David Cromptron Haulage v Depart for Transport (North Western Area) [2003] EWCA Civ 64. On application, the legal onus shifts to the applicant to satisfy me that the statutory criteria are met. The loss of professional competence means that the application must fail under section 17 by reference to 13AS(2)(d). For the avoidance of doubt, the operator failed to satisfy me against section 13C(4) and its repute is now severely tarnished.

The additional submissions submitted by Mr Powell confirm that the operator is part of the Amazon Committed Linehaul Program. The written representations refer to a belief that a fleet reduction/ suspension or even refusal of the application might result in the loss of the single customer, but that is not entirely reflected in the terms of the contract. I am told that the operator spoke with a representative of Amazon following the hearing to seek further guidance on the effect of a refusal of the application, and the effect of a regulatory action against the existing licence. The operator was apparently informed that there are a number of factors that Amazon will look at to determine whether the Company’s membership of the programme will be renewed. The Company has not received any certainty on this point. I refer to the approach taken by the Upper Tribunal in the case of 2013/047 Dundee Plant Hire Ltd, where it noted that in an appropriate case (which this is) a traffic commissioner is entitled to say: “I hope you survive but if not – so be it.” It went on: words of doom and gloom are easy to utter, and traffic commissioners hear them all the time before explaining the need for specific, comprehensive, and compelling actuarial evidence.

I remind myself of the Upper Tribunal’s comments in 2019/025 John Stuart Strachan t/a Strachan Haulage, that “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 increase of this type of trailer operation, following changes in the market brought about by the pandemic, means that there is an increased risk if operators do not employ rigorous compliance systems. DVSA has sought to assist operators through its publication of the Guide to Maintaining Roadworthiness. The risks were first highlighted in November 2018 and republished in December 2020:

5.1 3.3 Traction services and third party trailers

Operators can provide a traction-only service to customers who wish to own their own trailers for branding and loading purposes but do not wish to operate vehicles to pull them. It is also common practice for an operator who may own trailers but is also contracted to tow third party trailers not owned or maintained by them.

Ensuring third party trailer roadworthiness can be problematic for the traction service operator. Usually for short-term use the trailer owner would be responsible for the routine maintenance of the trailer, including the safety inspection (SI). Under these circumstances, traction operators are reliant on the trailer owner to correctly carry out their own safety inspections within their stated frequency and complete any necessary repairs.

The traction operator is responsible for ensuring a thorough walkaround check of the tractor/trailer combination is carried out to establish it is safe prior to use. If defects are identified during the walkaround check, these should be rectified prior to use.

Traction operators would be expected to work with the trailer owners to ensure any trailers operated fall within the owner’s agreed SI frequency and that they are roadworthy. It is best practice for the trailer owner to provide evidence for the operator that first use checks and safety inspections have been undertaken and demonstrate there are no outstanding defects reported for the trailer. There must also be a robust system in place to ensure defects identified during the walkaround check, or develop during use, are recorded and rectified before the tractor/trailer combination is operated in an unroadworthy condition.

As that guidance makes very clear, third party trailer owners should look to their wider safety duties. I have asked that the DVSA Enforcement Directorate is alerted to the circumstances of this case.

So, I must make clear to this operator (and others) that a failure to ensure that operated trailers are maintained within the stated frequency and the established standard will put the future of the operation at real risk. The continued failure to take charge of all aspects of the operation places this case within the Serious category. I have already indicated that I will allow it opportunity to continue in operation but a time limited curtailment that may materially affect the transport operation, is justified and within the terms of Statutory Document No. 10. The operator’s licence will be curtailed by 1 vehicle for 3 months commencing 23:45 on 1 March 2021. The operator has 7 days from the date of this decision to return the relevant disc. I make an order under section 26(6) preventing its use on another operation during that period.

Richard Turfitt

Traffic Commissioner

22 February 2021