Decision

Decision for Charles Percy Shaw t/a Plant Hirer & Groundwork Contractor (OD2043659)

Published 30 May 2023

0.1 In the West Midlands Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Charles Percy Shaw t/a Plant Hirer and Groundwork Contractor (OD2043659)

2. Summary of my decision

The sole trader restricted goods vehicle operator’s licence held by Charles Percy Shaw T/A Plant Hirer & Groundwork Contractor (the “operator”) under reference OD2043659 is revoked from 2345 hours on 19 May 2023 under section 26(1)(h) of the Act because the operator is no longer fit to hold an operator’s licence. The operator’s licence is also revoked under my discretionary powers from the same time and date under sections 26(1)(c)(iii), (e), (f) and (h) of the Act.

Mr Charles Percy Shaw is 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. These orders of disqualification are made under sections 28(1), (3) and (4) of the Act and the period of disqualification starts at 2345 hours on 19 May 2023 and ends at 2345 hours on 19 May 2026 (a three year period of disqualification).

3. Background

This sole trader operator’s licence was granted on 02 June 2021 and currently authorises 2 vehicles and one trailer. The Driver and Vehicle Standards Agency (the “DVSA”) undertook a joint maintenance and drivers hours and tachograph compliance investigation that began on 28 September 2022 but the DVSA were only able to meet with the Operator on 04 October 2022. Both investigations into the operator’s compliance were marked as “unsatisfactory”. Despite the response from the operator to the findings reached by the DVSA a decision was made by them to refer the findings to the Office of the Traffic Commissioner whereupon a decision was made to call the operator to a public inquiry.

The public inquiry was listed for 21 March 2023 at the Office of the Traffic Commissioner in Birmingham. That hearing was adjourned to 19 April 2023 at 10am. In the intervening period of time an addendum report was prepared by Vehicle Examiner Nigel Hopwood.

On 19 April 2023 the adjourned public inquiry took place at the Office of the Traffic Commissioner in Birmingham. In attendance was Mr Shaw. He brought with him various maintenance related documents. These had not been received before the day of the inquiry.

Present on behalf of the DVSA were Vehicle Examiner Nigel Hopwood and Traffic Examiner Sean Bateman.

The hearing started later than listed to allow the DVSA officers to look at the evidence provided by Mr Shaw.

Mr Shaw was clearly familiar with the maintenance investigation document prepared by Vehicle Examiner Hopwood since he responded to it (page 145 of the bundle) by saying “hello Nigel….I have read Concisely your Report etc”. Mr Shaw then submitted an email to my office dated 11 April 2023 that further commented upon DVSA reports from Messrs Hopwood and Bateman. I therefore allowed Vehicle Examiner Hopwood to have his Maintenance Investigation Visit Report (“MIVR”) and his addendum statement proven and taken as read as there was little to be gained by it being read out particularly as I asked the Vehicle Examiner Hopwood what his main areas of concern were from his investigations which he fully explained. Vehicle Examiner Hopwood was then asked to comment on the documents received from Mr Shaw on the day of the public inquiry and thereafter I asked him some questions before Mr Shaw was given ample opportunity to ask Mr Hopwood his own questions which he did.

Mr Shaw was happy for Traffic Examiner Bateman to have his Public Inquiry statement taken as read and he confirmed that he did not need that document read out. That statement was proven and the Traffic Examiner was questioned by myself and Mr Shaw. There was a short adjournment so that certain photographic evidence could be forwarded to my clerk and to Mr Shaw before the hearing recommenced.

Mr Shaw then gave evidence including what he had done since the DVSA investigations to improve compliance.

Having heard from Mr Shaw I recalled Vehicle Examiner Hopwood who was then invited to comment on what he had heard from Mr Shaw before being made available for any further questions by the operator.

Mr Shaw was then invited to summarise his case before I asked him about the effect of different types of regulatory action upon his licence. I then reserved my decision.

4. Findings of fact

I had before me the public inquiry brief paginated to page 189, the evidence brought to the inquiry by Mr Shaw and the oral evidence from both DVSA officers and Mr Shaw.

My findings of fact have been reached after carefully considering all of that evidence and where necessary after applying the civil standard of proof when an issue was in dispute. The civil standard of proof is simply what is more likely than not to have happened from the evidence before me.

Mr Shaw is the responsible person for this operator’s licence. There are no “L” plates for operating large goods vehicles. All prospective operators sign up to very serious general undertakings (formal promises) when they make an application for an operator’s licence which are binding from the moment that the licence is granted. All operators are then deemed to know what is required to operate safely and compliantly. They are deemed to know the advice and guidance that is in the public domain. It is not enough to say “I did not know” or “I am new and learning on the job”. What is required, and what is expected, is compliance with the general undertakings and conditions attached to all operator licences. For a sole trader restricted operator’s licence such as this, Mr Shaw is the only person responsible for ensuring compliance.

This has been made clear by the Upper Tribunal in appeal cases such as 2014/024 LA & Z Leonida T/A ETS and 2012/030 MGM Haulage and Recycling Ltd.

In MGM Haulage and Recycling Ltd the Upper Tribunal made it clear that operators are deemed to know the advice and guidance that is in the public domain, for example the Statutory Documents issued by the Senior Traffic Commissioner or the DVSA publication “A Guide To Maintaining Roadworthiness”. Both of which have been in the public domain for over 10 years. The Upper Tribunal were clear in this appeal case when they said an operator cannot say they did not know about such matters.

In the appeal case of LA & Z Leonida TA ETS the Upper Tribunal held that:

“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 have therefore looked at this case through the prism of those two appeal cases.

All of the evidence (written and oral) from Vehicle Examiner Hopwood was evidence based, properly reasoned, credible, cogent and highly persuasive. From his initial investigation contained in the MIVR I have found that it is more likely than not that his allegations of non-compliance are proven. In particular:

• Mr Shaw was unable to produce any maintenance documents on the day of the MIVR or after being given 14 further days to do so. Those documents should have been readily available to him since Mr Shaw was the stated maintenance provider for his vehicles; and

• Over a month later on 31 October 2022 maintenance documents were received by Vehicle Examiner Hopwood but they were incomplete and lacking information to show their integrity. For example no odometer readings, operator name not filled out, inaccuracies with tyre tread depth recordings, no brake performance filled in, vehicle inspector name left blank and the roadworthiness declaration was not signed. In addition there were no invoices or other third party documents to show the parts bought to corroborate maintenance work that was said to have been done; and

• The 8 weekly PMI inspection interval was being exceeded; and

• No forward planner was in use; and

• No written driver defect reporting system was in place; and

• There was no evidence that any defects were reported, recorded or appropriately assessed and repaired; and

• Mr Shaw stated that he was using a Mr Copeland for maintenance on a subcontracting basis but no maintenance contract was produced for Mr Copeland and my office was not notified of any additional maintenance provider; and

• The operator’s in house maintenance arrangements fell significantly below the standard expected. I accepted that Vehicle Examiner Hopwood asked Mr Shaw to show him his maintenance facilities and that the MIVR was based upon what Mr Shaw showed the Vehicle Examiner; and

• No vehicle operated by Mr Shaw had a valid MOT; vehicle AY05BZF had its last MOT expire on 28 March 2021 with a prohibition being issued at that test. On the date of the MIVR, that prohibition had still not been removed, i.e. it had not passed an MOT; and

• On the date of the MIVR the operator’s vehicles and trailers were found to be in an unroadworthy condition; vehicle AY05 BZF had five immediate and one delayed mechanical defects present, vehicle PX60AZU had one immediate and one delayed mechanical defect present and trailer 041020221435 had four mechanical defects present; and

• The overall assessment of Vehicle Examiner Hopwood’s investigation was that Mr Shaw’s vehicles “pose a significant risk to road safety;” and

• The response to the MIVR from Mr Shaw in no way addressed the concerns and shortcomings highlighted by Vehicle Examiner Hopwood; and

• As at the date of the public inquiry Vehicle Examiner Hopwood maintained that overall assessment, repeating again that Mr Shaw posed a significant risk to road safety.

The addendum report from Vehicle Examiner Hopwood (pages 1 and 2 of the updated public inquiry brief) details the issue of the MOTs and prohibitions.

An operator is allowed to drive a vehicle on a public road to a pre-booked MOT. Here that would be taking either of the vehicles operated by Mr Shaw to a pre-booked MOT in order to have the prohibitions attached to either vehicle removed. However, the law is clear (as confirmed to me by DVSA at the public inquiry) that if the vehicle fails its MOT (and therefore the prohibition remains in force) it cannot be driven on a public road and the vehicle must be removed by a recovery vehicle or on the back of a low loader or other suitable vehicle that the operator may have access to.

I explained in the hearing what the definition of a public road was and that explanation was supported by both DVSA officers. In essence it is any road (regardless of who pays for its upkeep) to which members of the public can have access even if certain groups of the public are denied access to that land. The definition of a public road also includes the verges or pavements that run along the side of it.

I find it is more likely than not that the allegations made in that addendum report from Vehicle Examiner Hopwood are proven namely:

• When vehicle AY05BZF was presented for MOT on 05 January 2023, in order for the prohibition that had been attached to it since the DVSA maintenance investigation by Vehicle Examiner Hopwood, the vehicle failed the MOT and was issued with an immediate prohibition for a significant number of serious brake defects (Mr Shaw is recorded as the recipient of that prohibition on the prohibition notice). It is more likely than not that Mr Shaw was told he could not drive the vehicle on a public road (and the MOT failure notice attached to the addendum report clearly stated the same) and it is more likely than not that Mr Shaw did drive the vehicle on a public road after it had failed the MOT because Vehicle Examiner Hopwood explained in oral evidence that he had been called by the MOT testing centre manager who told him that Mr Shaw had driven the vehicle away and I also reach this finding because Mr Shaw presented no persuasive evidence to show how the vehicle could have been removed from the testing station other than being driven away; for example no invoice evidence of it being collected by a third party operator using a recovery vehicle or a low loader was presented to me. For the avoidance of any doubt the road leading to and from a public MOT centre is more likely than not to be a public road.

• Between 05 January 2023 and when the vehicle was next presented for MOT on 27 January 2023 the vehicle had been driven 331 km. That is to say 331 km in just 22 days. I find as more credible the evidence of Vehicle Examiner Hopwood that such a distance is not consistent with a vehicle being driven purely on the private land at Mr Shaw’s farm to the evidence given by Mr Shaw driving purely on private land on his farm is how the distance arose. I note that the letter from ARS Properties Partnership dated 12 April 2023 only accounts for work at the site detailed within that correspondence from February 2021 until “late autumn last year” that is to say until late autumn of 2022. It therefore does not cover this period of time and it therefore does not assist Mr Shaw. I therefore reject Mr Shaw’s assertion that the vehicle was only driven around his farm and never on a public road as it is more likely than not that such a significant distance could not have been accounted for in that way. On balance the vehicle was driven on a public road for all or some of that distance.

• On 27 January 2023 AY05BZF was again presented for MOT in order to have the prohibition removed. The vehicle again failed the MOT and was again issued with an immediate prohibition for a significant number of braking defects (and Mr Shaw was recorded as the recipient of the prohibition on the prohibition notice). I find it is more likely than not that Mr Shaw did not wait for the paperwork to be issued but instead he drove off site for a second time in the knowledge of the braking defects and that the vehicle was not roadworthy because I find that Vehicle Examiner Hopwood was again telephoned by the MOT test station manager given the concerns that manager had at the time. I have no reason to doubt the oral evidence of Vehicle Examiner Hopwood when he told me about this. It was entirely credible and was entirely persuasive and Mr Shaw provided no persuasive evidence of his own as to how the vehicle left the MOT station other than it was driven away by himself.

• The prohibition for vehicle AY05BZF was finally removed on 09 March 2023. Between 27 January 2023 and 09 March 2023 the vehicle had travelled 466 km. For the same reasons detailed above (which I repeat) I find that it is more likely than not that vehicle AY05BZF was driven on a public road for all or part of that distance and that it is not more likely than not that the vehicle was only driven on private land at Mr Shaw’s farm because such a large distance is not consistent with driving a vehicle purely in that manner.

The evidence from Traffic Examiner Bateman (written and oral) was evidence based, properly reasoned, credible, cogent and highly persuasive. I find it is more likely than not that all of the compliance related allegations made by Traffic Examiner Bateman are proven. In particular:

• Traffic Examiner Bateman confirmed in his Public Inquiry Statement (page 7 of that statement) that when he met with Mr Shaw on 04 October 2022 Mr Shaw stated that he had been out in the morning doing some jobs in vehicle AY05BZF. That was consistent with Traffic Examiner Bateman then saying in his statement “I approached the vehicle, and the engine was hot, as were the brakes, indicating recent use.” That is to say the engine and brakes were still hot because the vehicle had just been used by Mr Shaw. It is more likely than not that the use of that vehicle on that day involved it being driven on a public road from and back to the operating centre.

• That when Vehicle Examiner Hopwood and Traffic Examiner Bateman attended at Mr Shaw’s premises on 04 October 2022 vehicle AY05BZF had not had a valid MOT test certificate for over a year (the last MOT test certificate expired on 31 October 2020, see page 7 of 22 in Traffic Examiner Bateman’s Public Inquiry Statement) but had driven over 9,000 km in that time. Whilst the letter from ARS Properties Partnership dated 12 April 2023 offers some support that this vehicle was used on the site detailed in that correspondence, I note that the letter actually states that Mr Shaw was only completing works at the site with vehicle AY05BZF “intermittently” until the late autumn 2022. It is more likely than not that such a significant distance was the result of the vehicle also being used on public roads rather than just around a building/demolition site. It is more likely than not that the vehicle would have to return to the operating centre for Mr Shaw to undertake repairs to it. It is more likely than not that Mr Shaw would have to take the vehicle from the site for it to be refuelled and it is more likely than not that, in order to do either of those things, the vehicle was driven on a public road rather than on the back of a low loader or other suitable vehicle. Mr Shaw did not provide any evidence (invoices, letters, emails) to show that a low loader or any other means of transporting vehicle AY05BZF on a public road.

• That Traffic Examiner Bateman had taken photographs when he and Vehicle Examiner Hopwood met with Mr Shaw on 04 October 2022. A short adjournment in the public inquiry was given so I could rise whilst two of those photographs were forwarded to Mr Shaw and to my clerk to put onto the master file for this case. Those two photographs showed one of Mr Shaw’s large goods vehicles parked on the side of what is clearly a public road. Mr Shaw did not say that was not the case. It is more likely than not that (a) that vehicle was driven to that location on a public road and (b) that it remained on a public road whilst parked where it was and (c) it had no MOT and was still subject to an immediate prohibition.

• Despite Traffic Examiner Bateman formally requiring Mr Shaw to produce evidence to demonstrate systems to properly manage drivers hours and tachographs rules and regulations Mr Shaw produced no such evidence and no such evidence was produced for or at the public inquiry.

• Mr Shaw only had driving entitlement to drive vehicles up to 7.5 tonnes. Traffic Examiner Bateman confirmed (see page 6 of his Public Inquiry Statement) that Mr Shaw had his category “CE” driving entitlement revoked/refused on 2014 and from then until the date of the public inquiry there was no change to Mr Shaw’s driving entitlement. Traffic Examiner Bateman explained this in detail in his oral evidence. Category “CE” driving entitlement is required to drive vehicles AY05BZF and PX60AZU. Mr Shaw produced his pink plastic driving licence in the hearing and confirmed, when I asked him, that it was issued in 2020 and when I asked him what appeared next to the largest lorry silhouette on the back of it (this is for the “CE” driving entitlement) he stated that there were two horizontal lines after it i.e. he did not have that driving entitlement. It is therefore more likely than not that Mr Shaw failed to check his driving entitlements both before and when his driving licence was renewed and that he had been driving vehicles that required driving entitlement “CE” when he had not held that entitlement since 2014.

• Traffic Examiner Bateman maintained his conclusion (page 18 of his Public Inquiry Statement) that “…it is clear that Charles Percy Shaw is a seriously non-compliant operator, with a total lack of disregard for road safety.”

Mr Shaw, from the documents he had produced for the public inquiry, was still not undertaking any proper walk round inspection of his vehicles because he was not keeping any record of any such inspection, no records were kept of remedial work undertaken to his vehicles and no rolling road brake test was being undertaken despite the DVSA publication “A Guide To Maintaining Roadworthiness” requiring four such, properly laden, tests per annum so that the braking efficiency of each axle can be properly assessed. The idea that Mr Shaw thought that he could drive one of his vehicles in a laden fashion, apply the brakes and that that was all that was required to properly test each and every part of the vehicle’s braking systems was quite alarming particularly in light of the road safety critical prohibitions he had received for brake related defects.

Mr Shaw’s knowledge of drivers hours, tachograph and Road Transport Working Time Regulations 2005 (colloquially known as the road transport working time directive) was poor. He got several of the questions I asked him wrong when those questions were about basic things.

There had been some improvements since the DVSA visit. He was going to use (in the future) a new maintenance provider, West Pennine Trucks, a reputable tyre company was being used, a digital tachograph card was now in use, that going forward there would be compliance with maintenance and with EU drivers hours and tachograph rules. I have given Mr Shaw as much credit as I can for all of these improvements and promises of future commitments.

Overall, and pulling everything together, I was satisfied that it was more likely than not that:

• Mr Shaw had been operating vehicles on a public road when there was no valid MOT in force and when the vehicles were subject to a prohibition notice; and

• Mr Shaw had driven a regulated vehicle on a public road on at least two occasions from an MOT testing station when that vehicle had failed the MOT for road safety critical defects and when a prohibition notice remained in force; and

• Mr Shaw had been driving lorries that required category “CE” driving entitlement that Mr Shaw did not have because his driving entitlements only allowed him to drive vehicles up to 7.5 tonnes; and

• Road safety had been put at considerable risk by Mr Shaw at the time of the DVSA investigations and thereafter until at least 09 March 2023 when the vehicle finally passed its MOT; and

• As at the date of the public inquiry Mr Shaw had not satisfied me that robust and effective changes to his road transport compliance system were producing compliance. To the contrary, it was more likely than not that at the date of the public inquiry Mr Shaw was still not compliant and that road safety was still being compromised as there was a lack of persuasive and tangible documents to show otherwise; and

• Serious long standing road safety critical defect related prohibitions had been issued; and

• There was, right up to the date of the public inquiry, a lack of any effective management control of the transport operation by Mr Shaw; and

• The general undertakings on the operator’s licence had been breached because the laws relating to the driving and operation of vehicles used under this licence were not observed, the rules on drivers’ hours and tachographs were not observed, proper records were not kept and that these were not made available on request, vehicles and trailers, including hired vehicles and trailers, were not kept in a fit and serviceable condition, Mr Shaw as the driver was not reporting promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and any defects were not recorded in writing, records were not kept (for 15 months or at all) of all driver reports which recorded defects, all safety inspections, routine maintenance and repairs to vehicles, and that they were not made available on request and Mr Shaw did not notify the traffic commissioner within 28 days of any material changes, for example a change to the proposed maintenance arrangements or other changes that might affect the licence; and

• The efforts made by Mr Shaw before the public inquiry to try to restore compliance were far too little and far too late.

5. Balancing exercise

After giving the operator as much evidential weight as I can give for all of the positives in this case (which is not very much weight at all) I still find, as at the date of the public inquiry, that the negative features still significantly outweigh the positives because those negative features attract significant evidential weight. Consideration of regulatory action is required.

6. Decisions

I repeat all of my findings. Having done so I have carefully considered Statutory Document 10, Annex 4 issued by the Senior Traffic Commissioner. Having done so it is clear to me that this case falls firmly in the “Severe” category as an entry point for regulatory action against the operator’s licence.

In considering what regulator action I should take I took into account everything that Mr Shaw had told me about the effect of action against his operator’s licence.

This is a restricted operator’s licence. That said the Upper Tribunal has held that it is still useful, when looking at an operator’s fitness to hold an operator’s licence, to ask the question posed in the appeal case of 2009/225 Priority Freight; how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? Repeating all of my findings (and those that form part of the proven DVSA evidence not specifically spelt out in the body of this decision) it is entirely proportionate for me to answer that question in the negative because I simply do not trust Mr Shaw to be compliant. His track record is appalling, he has put road safety at significant risk and he had repeatedly disregarded compliance and adherence to the very the rules and regulations designed to ensure road safety.

From my findings, despite the credit I have given to this operator for the positives in this case, it is entirely proportionate for me to determine that as a result of the acts and omissions of Mr Shaw he is no longer fit to hold an operator’s licence.

It is therefore a mandatory requirement that I revoke the operator’s licence under section 26(1)(h) of the Act.

Repeating all of my findings, and after giving the operator as much credit as I can give to him for the positives in this case, I determine that it is proportionate to revoke the operator’s licence under my discretionary powers pursuant to sections 26(1)(c)(iii) [the prohibitions], 26(1)(e) [failure to undertake the preventative maintenance inspections on time], 26(1)(f) [the breach of the general undertakings on the operator’s licence] and also under section 26(1)(h) [material changes since the licence was granted].

All orders of revocation take effect at 2345 hours on Friday 19 May 2023.

This is a bad case, certainly one of the worst that I have seen for several years.

I have 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 have 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 repeat all of my findings and the proven allegations from the DVSA. Despite all of the credit that I can give to Mr Shaw this is a case where disqualification is not only proportionate but it is also necessary to ensure road safety. It is also required to ensure that there is 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 Mr Charles Percy Shaw is 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. These orders of disqualification are made under sections 28(1), (3) and (4) of the Act and the period of disqualification starts at 2345 hours on 19 May 2023 and ends at 2345 hours on 19 May 2026 (a three year period of disqualification).

The operator is unequivocally warned that operating any regulated vehicle after 2345 hours on 19 May 2023 is an offence which I would ask the DVSA to prosecute in the criminal courts and doing so also empowers the DVSA to impound any vehicle(s) so operated when there was no valid operator’s licence in force. Mr Shaw now has actual knowledge of the power of DVSA to impound after 2345 hours on 19 May 2023.

The Traffic Commissioner for the West Midlands

Mr M Dorrington

27 April 2023