Decision

Decision for CCP Trade Ltd (OH2044472), Shire Car Sales (Stourbridge) Ltd (OD2044387) and Terra-Tec Environmental Limited (OD2045546)

Published 15 August 2023

0.1 In the West Midlands Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 CCP Trade Ltd (OH2044472), Shire Car Sales (Stourbridge) Ltd (OD2044387), Terra-Tec Environmental Limited (OD2045546)

2. Summary:

The restricted operator’s licence held by CCP Trade Limited under reference OH2044472 was revoked with immediate effect under sections 26(1)(a), (e), (f) and (h) of the Act. This company was disqualified, from holding or obtaining any type of operator’s licence in any traffic area, with immediate effect until 12 July 2025 (a two year disqualification) under sections 28(1) and 28(3) of the Act.

Mr Luv Datta, director of CCP Trade Limited, was disqualified from holding or obtaining any type of operator’s licence in any traffic area, from being a director or partner in any company or partnership that holds or applies for any type of operator’s licence in any traffic area and he is also disqualified from being a majority shareholder in a company that applies for or holds any type of operator’s licence in any traffic area or from being a director, or majority shareholder of a company that is a subsidiary to a company that holds or applies for any type of operator’s licence in any traffic area. This order of disqualification is made under sections 28(1), (3), (4) and (5) of the Act and the period of disqualification started immediately and ends on 12 July 2025; a two year disqualification.

The restricted operator’s licence held by Shire Car Sales (Stourbridge) Ltd under reference OD2044387 was revoked with immediate effect under sections 26(1)(f) and (h) of the Act. No order was made under section 28 of the Act.

The restricted operator’s licence held by Terra-Tec Environmental Limited under reference OD2045546 was revoked with immediate effect under sections 26(1)(f) and (h) of the Act. No order was made under section 28 of the Act.

3. The Public Inquiries

From the outset of the Public Inquiry I announced that the only director of all three operators was Mr Luv Datta. Only when I had finished giving my oral ex tempore decision, after first retiring for over 90 minutes, was it brought to my attention by the solicitor representing all three operators that there was a second director for CCP Trade Ltd (“CCP” from now onwards) who was appointed in April 2023. This had never been brought to the attention of the Office of the Traffic Commissioner and no such person appears on VOL (the electronic platform for all operator licensing undertaken by the Office of the Traffic Commissioner) or in the Public Inquiry brief (page 2 under directors and at page 25 being the printout from Companies House). The effect of being notified of the second director after I had made my decisions made no material difference to any of the decisions that I made as I explained at the time and which I explain again in due course.

Present today was Mr Willis, Solicitor representing all three operators and Mr Luv Datta (and no one else). No director from any of the operators attended.

Present from the DVSA were Vehicle Examiner Austin Jones and Traffic Examiner Matthew Payne.

I addressed with Mr Willis preliminary matters and the papers I had. This included the fact that I was to principally consider CCP first as the bulk of the evidence related to that operator directly and to Mr Luv Datta as the responsible person.

Both DVSA officers proved their evidence that was taken as read and were offered to Mr Willis for questioning.

I then heard from Mr Willis in submissions before retiring for over 90 minutes in order to reach my decision.

4. Findings of Fact

All findings of fact were made after applying the civil burden of proof, what is more likely than not to have occurred, to all of the evidence that I considered relevant to deciding any particular issue.

No director for any of the operators appeared before me today. I had refused two applications to adjourn. In essence I had been told that Mr Datta was on a family holiday (but not abroad) with no specific details or evidence (like a booking confirmation) having been provided. I had given my reasons for refusing both requests to adjourn previously. No new request was made on the day of the hearing. Mr Willis explained to me that he had very limited instructions and that he had not been instructed to accept service of documents for any of the three operators.

I was satisfied that the call up letter dated 07 June 2023 had been sent to the last known correspondence address and last known email address given to the Office of the Traffic Commissioner by the operator. Neither piece of correspondence was returned as undelivered. The email address was the same email address that Mr Datta had been using to correspond with the case worker in my office right up until just before the public inquiry. In relation to the correspondence address, I rely upon the Upper Tribunal appeal decision of UA-2022-001528-T Philip Drake that held using the correspondence address provided by the operator to Office of the Traffic Commissioner is good enough for delivery of correspondence to be effective. It is therefore more likely than not that one, or both, call up letters were delivered to the operator over a month before the public inquiry date.

I was asked before the public inquiries started for SUR1s (licence surrender forms) to be accepted for all three operators. I announced at the start of the proceedings that all three requests were refused.

The specified operating centre for CCP is at Lower Slaughter, Cheltenham, GL54 2EY. That is in the Western Traffic Area. Throckmorton Airfield is in the West Midlands traffic area.

The distance between the two addresses, from a simple AA routefinder check, is about 25 miles.

I had first heard, before the public inquiry, from three drivers in three driver conduct hearings. Two of those drivers worked for CCP as drivers. In their respective PACE interviews they confirmed that the vehicles for CCP were normally parked at Throckmorton Airfield. This was again confirmed by both drivers in oral evidence. Neither driver was questioned by Mr Willis (who confirmed that he was not representing any of the three) even though I gave him the opportunity to do so. The third driver was nothing to do with any of the three operators before me as he was driving an unlicensed vehicle that was impounded by DVSA on the same day as he was stopped.

The evidence of Vehicle Examiner (“VE”) Austin Jones contained in his MIVR was proven and taken as read. There were very limited questions asked of him by Mr Willis. In relation to the allegation of the unauthorised operating centre being used by CCP the VE stated that there were a total of 650 ANPR readings for three vehicles specified on the CCP operator’s licence at the time; vehicles PX19KVB (221 readings), YD22YDX (201 readings) and OW15WFL (228 readings). These 650 readings were described as being in the vicinity/proximity of Throckmorton Airfield with only one reading over the same period of time being recorded in the proximity/vicinity of the actual operating centre at GL54 2EY.

The fourth vehicle specified on the operator’s licence at the time, BV22LDJ, had 294 readings in the vicinity/proximity of Throckmorton Airfield and only one reading over the same period of time recorded in the vicinity/proximity of the actual operating centre at GL54 2EY.

In other words of a total of 946 ANPR readings only two of them were in the proximity/vicinity of the actual operating centre. That is to say just 0.2%.

There is a camera in the vicinity/proximity of the specified operating centre and, as per the VE MIVR evidence and oral evidence, it is more likely than not that the only road to the operating centre that can accommodate vehicles of the weight and dimensions as those used by CCP is along the A429.

ANPR cameras are active 24 hours a day 365 days a year. Therefore, if the vehicles were normally parked at their specified operating centre when not in use there would have been a significant number of readings recorded on the ANPR camera in the proximity/vicinity of that operating centre.

Taken together with the evidence from the two drivers who were before me today I was satisfied that it was more likely than not that all four vehicles recorded on the CCP operator’s licence were normally being kept at Throckmorton Airfield and not at the specified operating centre for the entire period of time looked at by DVSA which was from the date that the vehicles were specified on the operator’s licence up to 07 October 2022.

That would be from 19/9/2022 for vehicle PX19, from 10/8/2022 for vehicle YD22, from 01/7/22 for vehicle OW15 and from 24/8/22 for BV22.

Both the sample size of ANPR data (946 readings) and the date ranges looked at are sufficient to be a reasonable representation of what was normally happening.

Therefore, for a significant period of time, this operator had been using an unauthorised operating centre contrary to section 26(1)(a) of the Act. From the evidence before me there were probably in excess of a hundred days in total when the four vehicles were not being normally parked at their specified operating centre when not in use. If that was not the case then why would only 0.2% of the ANPR data show any of the four vehicles specified on the operator’s licence being in the vicinity/proximity of the operating centre?

I therefore further found that for virtually the whole period in question an offence has occurred under section 7 of the Act which is the absolute offence of using an unauthorised operating centre. In addition there is the material change since the was granted i.e. using a new and unauthorised operating centre.

This operator cannot plead any form of ignorance because (a) the notes section on all operator licence documents at note number 6 warn about using any address without first having permission of the Traffic Commissioner, (b) all responsible people (here Mr Datta) are deemed to know what is required to run a compliant operation and in that respect I rely upon the Upper Tribunal appeal case of LA & Z Leonida T/A ETS 2014/024 and MGM Haulage and Recycling Ltd 2012/030. I read out the relevant part of the decision in the LA & Z Leonida decision which states:

“It does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime. That means they cannot plead ignorance or put the blame on the transport manager because they are required to have sufficient knowledge of the regulatory regime to ensure compliance in general and the proper performance of the transport manager’s duties in particular.”

I further find that it is more likely than not that using the unauthorised operating centre at Throckmorton had created an unfair commercial advantage for this operator in fuel and time savings and that the operator had been operating without a West Midland Traffic Area operator licence in the West Midland Traffic Area which is in and of itself unlawful.

The operator (contrary to the call up letter) failed to provide any drivers hours or tachograph data/evidence/reports. Therefore, the TE present today was unable to ascertain whether the operator and its drivers were compliant.

The MIVR demonstrated serious and long standing issues of non-compliance. All of the other allegations, other than the unauthorised operating centre one that I have dealt with at length above, made by VE Jones are more likely than not to have occurred and were therefore proven. I repeated those proven allegations and adopted them all as my own findings of fact for the purpose of reaching my decision.

It was clear from those adopted findings that road safety was put a risk as there were either no systems in place, ineffective systems in place, 75% of records not being properly completed, 75% of records showed no brake test undertaken and 50% of records showed stretched maintenance intervals. Overall it was clear to me that the responsible person, Mr Datta, was not in any way effective at managing the transport operation of CCP.

As a result the general undertakings on the operator’s licence that related to maintenance were breached.

The up to date assessment by VE Jones of maintenance related documents produced just before the inquiry showed that it was more likely than not that 100% of PMI records failed to have any form of brake test recorded on them and the two identified brake tests appeared to be for an MOT. Those do not count because a brake test at MOT does not form part of the PMI history. That means brakes are looked at less often now than at the time of the MIVR. For the avoidance of any doubt brakes have to be properly checked at every PMI. Brakes are a road safety critical item. If there is no record that they have been checked then they have not been checked. Road safety was still being put at serious risk as a result.

The TEVR and public inquiry statement evidence from TE Payne was credible, cogent and persuasive. He was not cross examined upon it in any, or any material, way. The allegations in the TEVR made by TE Payne were more likely than not to have occurred. They were therefore found to be proven and in particular at page 207 of the public inquiry bundle the 11 proven allegations are specifically set out. In addition are the additional proven allegations on page 145 of the bundle in the summary and conclusion of TE Payne.

I repeated all of the proven allegations made by TE Payne and adopted them all as my own findings of fact.

From those findings it was clear that road safety was put at risk, that the general undertakings on the operator’s licence were breached that related to drivers hours and tachograph compliance and that Mr Datta was not effective in managing that part of the operator’s licence.

As said above, there was no way of knowing if this operator was now compliant as it had failed to produce any drivers hours related evidence for this public inquiry contrary to the call up letter.

Finally, the operator had produced no evidence at all to demonstrate that it remained of sufficient financial resources. I found that the operator was not of sufficient financial resources.

There were some positives put forward by Mr Willis on behalf of the operator and Mr Datta; no previous public inquiry, no PG9s at any roadside encounter or at all, PMI records now in proper files, suitable forms used, PMIs now at the correct inspection intervals and the company had joined the RHA. I gave the operator as much credit as I could for all of those.

Looking at this operator as it appeared before me today, and repeating everything I have said above, it was clear that the long standing serious proven findings of non-compliance vastly outweighed the credit I had given for the positives in this case. Consideration of regulatory action was therefore required.

5. Decision

Turning to statutory document 10, annex 4, issued by the Senior Traffic Commissioner, and after repeating all of my findings, I determined that this case fell into the “severe” category for consideration of regulatory action because road safety is still at risk, there was no up to date tangible evidence of compliance with drivers hours and tachograph regulations before me, there is no input today from the responsible person Mr Datta (not even a statement from him), there was long standing and clear abuse of the laws surrounding the use of an unauthorised operating centre and the use of the unauthorised operating centre created an unfair commercial advantage to this operator, maintenance compliance at the time of the MIVR was appalling and there is still no effective control of compliance both for maintenance and drivers hours.

I have asked myself the question in the appeal case of Priority Freight. From the acts and omissions of the responsible person, Mr Datta, I have no hesitation in answering that question in the negative. I do not trust this operator to be compliant in the near future.

I was told in submissions that revocation would be a big impact on this operator. I am afraid I failed to see how that could be when the operator asked me to accepts its request to surrender its licence; i.e. to give its licence up as at today and to have no operator’s licence as a result.

From the acts and omissions of Mr Datta, and what followed as a result, it was proportionate for me to determine that this operator was no longer fit to hold an operator’s licence. The licence was revoked under section 26(1)(h) of the Act.

The operator was not of sufficient financial resources. I had no way of knowing what money it had available to it now or over the past 3 months as a result. It was proportionate to revoke the operator’s licence under section 26(1)(h) of the Act as a result.

The longstanding use of an unauthorised operating centre for all four vehicles authorised on the operator’s licence at the time of the MIVR led me, without hesitation, to determine that it was proportionate to revoke the operator’s licence under section 26(1)(a) of the Act.

The longstanding breaches to the maintenance related general undertakings on the operator’s licence and the present breach (that is road safety critical) regarding the lack of brake testing led me, without hesitation, to conclude that it was proportionate to revoke the operator’s licence under sections 26(1)(e) [stretched PMI frequencies] and (f) [breach of the general undertakings] of the Act.

The longstanding breaches of the drivers hours general undertakings on the operator’s licence and the lack of any related up to date evidence in order to give an up to date picture led me, without hesitation, to determine that it was proportionate to revoke this operator’s licence under section 26(1)(f) of the Act.

It is also proportionate to revoke this operator’s licence due to the material changes that had occurred since the operator’s licence has been granted. That order of revocation was made under section 26(1)(h).

All orders of revocation were made with immediate effect. From that moment onwards the operator had no operator’s licence and therefore no lawful ability to operate any vehicle on a public road. The operator asked me to allow the surrender of the operator’s licence. That would have been with immediate effect and therefore the operator would have had no operator’s licence with immediate effect too. Therefore, the operator has clearly, already envisaged having no licence today.

6. Disqualification

I considered the Transport Tribunal (as it was before the Upper Tribunal) appeal case of 2006/27 Fenlon where it was held that:

‘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 operator 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 had considered the appeal cases on the subject of disqualification including 2018/072 St Mickalos Company Ltd & M Timinis and 2010/29 David Finch Haulage.

I repeated all of my findings and the proven allegations from the DVSA and my own findings. Despite all of the credit that I could give, this was a case where disqualification was not only proportionate but it was also necessary to ensure road safety and fair competition. It was also required to ensure that there was a suitable deterrent to other well informed operators who might otherwise be tempted to think along the lines of “What is the point of spending all of this money, time and effort in being compliant when there will be very little action taken if I am caught being seriously non-compliant?” It would only take a few operators to start thinking like that before the purpose of this jurisdiction was questioned and the public would suffer.

The proportionate regulatory action is that CCP Trade Ltd was disqualified from holding or obtaining any type of operator’s licence in any traffic area. That order of disqualification was made under sections 28(1), (3) of the Act and the period of disqualification started immediately and ends on 12 July 2025; a two year disqualification.

The proportionate regulatory action was that Mr Luv Datta was disqualified from holding or obtaining any type of operator’s licence in any traffic area, from being a director or partner in any company or partnership that holds or applies for any type of operator’s licence in any traffic area and he is also disqualified from being a majority shareholder in a company that applies for or holds any type of operator’s licence in any traffic area or from being a director, or majority shareholder of a company that is a subsidiary to a company that holds or applies for any type of operator’s licence in any traffic area. This order of disqualification was made under sections 28(1), (3), (4) and (5) of the Act and the period of disqualification started immediately and ends on 12 July 2025; a two year disqualification.

For context statutory document 10 says for the first public inquiry when disqualification is considered, the proportionate range of 1-3 years disqualification is appropriate.

I then consulted with Mr Willis, Solicitor, before moving on to the other two operators. He confirmed that he had no instructions for them.

7. Shire Car Sales (Stourbridge) Ltd, OD2044387 and Terr-Tec Environmental Limited, OD2045546

Turning now to Shire Car Sales (Stourbridge) Ltd, OD2044387. The sole director is Mr Luv Datta. He has now been disqualified with immediate effect. Shire Car Sales (Stourbridge) Ltd cannot now hold an operator’s licence as (a) the sole director is disqualified and (b) there is no alternate director and (c) a period of grace can only be granted to the holder of a standard national (or standard international) operator’s licence and not to the holder of a restricted operator’s licence. The licence was therefore revoked under section 26(1)(h) – material change.

I repeated everything that related to CCP and the conduct of Mr Datta. Again, no finance or drivers hours related evidence was submitted. I found that the operator was not of sufficient financial resources. It was proportionate to revoke the operator’s licence under section 26(1)(h) as a result. It was also proportionate to revoke the operator’s licence under sections 26(1)(f) for the breach of the general undertakings that related to drivers hours and tachograph compliance as I could not be satisfied that the operator remained compliant since no evidence of the same, contrary to the clear direction in the call up letter, was received.

Finally as a result of Mr Datta’s acts and omissions, as fully detailed before, it was proportionate to determine that this operator was no longer fit to hold an operator’s licence and the licence was revoked under section 26(1)(h) as a result.

No order was made under section 28 of the Act that I explained further in the hearing.

Finally I turn to Terra-Tec Environmental Limited, OD2045546. The sole director is Mr Luv Datta. He has now been disqualified with immediate effect. Terra-Tec Environmental Limited cannot now hold an operator’s licence as (a) the sole director is disqualified and (b) there is no alternate director and (c) a period of grace can only be granted to the holder of a standard national (or standard international) operator’s licence and not to the holder of a restricted operator’s licence. The licence was therefore revoked under section 26(1)(h) – material change.

I repeated everything that relates to CCP and the conduct of Mr Datta. Again, no finance or drivers hours related evidence was submitted. I found that the operator was not of sufficient financial resources. It was proportionate to revoke the operator’s licence under section 26(1)(h) as a result. It is also proportionate to revoke the operator’s licence under sections 26(1)(f) for the breach of the general undertakings that related to drivers hours and tachograph compliance as I could not be satisfied that the operator remained compliant since no evidence of the same, as per the clear direction in the call up letter, was received.

Finally, as a result of Mr Datta’s acts and omission (as fully detailed before) it was proportionate to determine that this operator was no longer fit to hold an operator’s licence and the licence was revoked under section 26(1)(h) as a result.

No order was made under section 28 of the Act that I explained further in the hearing.

Having got to this part of the hearing I was then told by Mr Willis that there was a second director for CCP who was appointed in April 2023. This was the first time I had been made aware of that appointment. The operator had never informed the Office of the Traffic Commissioner about that (as it was required to do as a matter of law) and as a result the file held by my office still, as at today, had Mr Datta as the sole director.

The call up letter for CCP was addressed to the “Director(s)” and post dated this other person’s appointment. That person had not attended today and as I had made clear at the start of my ex tempore oral decision, I had been satisfied that the call up letter had been delivered to the operator. This second director had provided absolutely no evidence or submissions regarding their actual involvement in the business and the transport operation. I had absolutely no way of being able to assess their input, competence, knowledge or ability.

The appointment of a second director made no material change to my decisions in relation to CCP. In a limited ocmpany the directors share joint liability. The conduct of Mr Datta, by his acts and omissions, carried significant evidential weight and his conduct was the reason for the decisions I made. He was the person regarded as the responsible person for the transport operation. He was the only person corresponding with my office right up to just before the date of the public inquiry.

Traffic Commissioner Mr M Dorrington.

12 July 2023