Decision

Decision for Carmarthenshire Recycling & Environmental Services Ltd T/A CRES (OG0095220) and Transport Manager – Julian Emlyn Jones

Published 4 August 2023

0.1 In the Welsh Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Carmarthenshire Recycling & Environmental Services Ltd T/A CRES (OG0095220) and Transport Manager – Julian Emlyn Jones

2. Background

Carmarthenshire Recycling & Environmental Services Ltd, trading as CRES, holds a Standard National Goods Vehicle Operator’s Licence authorising 17 vehicles and 12 trailers, granted on 27 April 2000. There are two directors of the operating company, Julian Jones (who is also the transport manager) and his mother Helen Jones. It is a family business engaged in skip hire and recycling. The operator attended a public inquiry in 2020 following an unsatisfactory maintenance investigation. That resulted in the licence being curtailed by four vehicles for 28 days, findings that the repute of both operator and transport manager was tarnished and undertakings being attached to the licence (which were fulfilled).

A Driver and Vehicle Standards Agency (“DVSA”) maintenance investigation into the operator’s systems for complying with operator licence maintenance requirements was conducted during December 2022 and January 2023. The results of DVSA’s Vehicle Examiner (“VE”) report were unsatisfactory, with serious compliance failures found. It was noted that various concerns during the previous investigation visit/public inquiry were still evident, and the transport manager was assessed as having ineffective control. By a call up letter dated 8 June 2023, the operator and transport manager were called to public inquiry to explore the shortcomings identified.

3. Hearing

The Public Inquiry was listed for 13 July 2023 at Pontypridd and it commenced and concluded on that date. Julian Jones, company director, appeared on behalf of the operator and in his capacity as transport manager, represented by Lee Reynolds of Counsel, instructed by Mia Jones of Morgan La Roche, Solicitors. Neil Thomas, transport consultant of NRT Consultancy also attended for the operator and VE Derek Young attended from the DVSA. I heard oral evidence from VE Young and Mr Jones and submissions from Mr Reynolds. At the conclusion of the hearing, I indicated that I was reserving my decision and would issue a written decision as soon as possible.

4. Evidence

In addition to the papers in the public inquiry bundle I was provided with a bundle from the operator in advance of the hearing. That included a witness statement dated 5 July 2023 from Julian Jones, a letter and audit report (with enclosures) prepared by Neil Thomas dated 27 and 20 June 2023 respectively. My office received financial evidence from the operator in advance of the inquiry and I was satisfied that the financial standing requirements were met. Recent maintenance documents had been provided to VE Young in advance of the public inquiry, as requested in the call up letters, and VE Young had prepared an update statement for the inquiry, dated 12 July 2023.

I do not set out all of the evidence in this decision because it is a matter of record within the bundle and transcript of proceedings.

5. Issues

The public inquiry was called for me to consider whether there were grounds for me to intervene in respect of the licence held by Carmarthenshire Recycling & Environmental Services Ltd specifically by reference to the following provisions of the Act: sections 13A, 26(1), 26(1)(c)(iii), 26(1)(e), 26(1)(f), 26(6), 27(1) and 28 and paragraph 14A of Schedule 3. It was also called to consider whether Julian Jones continues to meet the requirements of transport manager to be of good repute and professionally competent.

6. Findings of fact

It is undisputed that the operator has been issued with prohibition notices by the DVSA within the past 5 years. Accordingly, I find that section 26(1)(c)(iii) of the Act is made out.

Statements made by the operator when applying for the licence have not been fulfilled, namely that the vehicles would be inspected at the 6-week intervals the operator promised they would be. The DVSA evidence included within the Brief at page 63 suggested that the operator’s failing in this regard was extremely serious, with 85% of the records checked showing late safety inspections according to VE Young’s compliance summary which he had compiled using a DVSA analysis tool. However, upon further questioning VE Young was unable to say how many inspections exceeded the 6 week interval and his evidence was that the majority were “there or thereabouts where they should be”. Whilst this compliance failing was not as serious as first made out, it was accepted that there were late inspections and that there were only 2 inspection reports produced for one of the vehicles specified in July 2022. I therefore find that section 26(1)(e) of the Act is made out.

The evidence is clear that the operator failed to comply with the undertakings on the licence that its vehicles and trailers would be kept fit and serviceable as evidenced by the prohibition notices issued and poor initial MOT fail rate. The operator also failed to comply with the undertaking that it would keep proper safety inspection records. Accordingly, I find that section 26(1)(f) of the Act is made out.

7. Considerations and Decisions

In considering the appropriate starting point for regulatory action I have had regard to the Senior Traffic Commissioner’s Statutory Document 10, and place this case in the “severe to serious” category having conducted the balancing exercising to weigh the relevant negative and positive factors.

There were persistent operator licence failures with inadequate response following a previous public inquiry as recently as 2020 – some of the same failures identified by the DVSA in their 2020 report were again present at the time of the DVSA investigation and report in 2023 (page 53 of the brief); there was ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings; there were road safety critical defects on vehicles in service, including an “S marked prohibition and a substantial number of prohibitions – 11 since the last public inquiry; and there was a low average first time pass rate at MOT with multiple failure items at MOT. On the positive side, the operator co-operated with the enforcement investigation, and effective changes have been made, with tangible evidence in support (clear MOT pass rate since March 2023 and update statement prepared for the inquiry from VE Young), to ensure future compliance.

I have considered the situation now, the swift action taken by the operator to engage consultants and improved maintenance arrangements, and I noted the DVSA evidence that there had been a marked improvement, and that the operator was in fact now “ahead of the game”. That said, assurances had previously been given by this operator at a public inquiry before Deputy Traffic Commissioner Seculer in 2020, and that is also relevant to my consideration. This was acknowledged by Mr Jones and his barrister invited me to find that Mr Jones, as director of the operating company and as transport manager was in “the last chance saloon” and should be given one final chance given the improvements made by the time of the public inquiry. Taking those factors into account and accepting the operator’s promises to continue to engage Neil Thomas as a transport consultant and reputable new maintenance provider, I am prepared to give the operator one final opportunity to demonstrate that it can continue to run a fully compliant operator’s licence. I find the operator’s repute severely tarnished, but not lost, but this is the final warning. There is a clear need for regulatory action in view of the serious failings found and accepted by the operator. I heard evidence about the impact on the operator’s business of regulatory action that I might take against the licence. In considering the Priority Freight question, “how likely is it that the operator will, in the future, comply with the operator licensing regime?” I find the answer to be “likely” on the evidence heard. I consider that there is a need for a deterrent intervention by way of a period of curtailment and I curtail the licence by seven vehicles (i.e. from 17 to 10 vehicles) under s26(1) of the Act with effect from 23:45 hours on 26 July 2023. That curtailment will remain in place for a period of two months, i.e. until 23:45 hours on 26 September 2023.

Although the operator has introduced new systems and taken on board advice from the DVSA and Neil Thomas, given that these new arrangements have been in place for a relatively short period an audit undertaking was proposed to give me assurance that the improved compliance will be sustained. For that reason, the audit undertaking in the terms set out at paragraph 2 of my Decision above is attached to the licence, agreed by the operator. It will be for the operator to ensure that it continues to achieve the required standards in future, and I note promises made regarding continuing to use contracted transport consultants and maintenance providers to achieve that. I am not attaching yet more undertakings in that regard – it is for the operator to follow through on those promises and it can be under no misapprehension as to what will happen should it be called back to public inquiry for future compliance failings.

In considering appropriate action to take against Julian Jones as transport manager, it was clear that he was not properly fulfilling his responsibilities as transport manager in February 2023 and the months before that when VE Young made his findings set out in his report. However, he was candid about his failings in his evidence before me, which were due to a number of factors, including the inadequacies of two new fitters taken on when his previous fitter suffered an accident and had to take an extended period of absence, and also insufficient time devoted to the licence. He has been using Mr Thomas as a mentor, and his wife has now taken on a more significant role in the business allowing him to devote more time to his transport manager duties. In the circumstances I find that Julian Jones’ repute as transport manager is not lost, but is severely tarnished, in view of the failings found. Again, this must be viewed as the final warning as to his future conduct as transport manager.

Victoria Davies

Traffic Commissioner for Wales

24 July 2023