Decision

Decision for Christopher Bavin t/a Lincolnshire Bio Fuels

Published 29 September 2023

0.1 IN THE EAST OF ENGLAND TRAFFIC AREA

1. PUBLIC INQUIRY IN CAMBRIDGE ON 21 SEPTEMBER 2023

2. APPLICANT: CHRISTOPHER BAVIN T/A LINCOLNSHIRE BIO FUELS

3. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

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4. Background

On 20 January 2023 Christopher Bavin t/a Lincolnshire Bio Fuels applied for a restricted goods vehicle operator’s licence for two vehicles. The application came to the traffic commissioner’s attention because Christopher Bavin is the son of Harry Bavin t/a B&B Tree Specialists, whose restricted licence OF1040036 had been revoked in March 2022 after serious maintenance failings had been found at a public inquiry. The central licensing team in Leeds noted that Christopher Bavin intended to use the same operating centre – Hawthorne Cottage, Five Mile Lane, Lincoln - where Harry Bavin had been authorised to keep two vehicles.

By letter dated 11 May 2023, the traffic commissioner therefore proposed to refuse the application under Section 13B and 13C of the 1995 Act. Christopher Bavin requested that a public inquiry be held and this was duly arranged to take place in Cambridge on 21 September 2023.

5. Public inquiry

Present at the public inquiry were the applicant Christopher Bavin and barrister Samuel Jones, representing. Mr Jones had sent in an advance submission, for which I was grateful. The submission made the following main points:

• Christopher Bavin’s involvement with Harry Bavin’s operator licence had not been direct: he had occasionally driven an HGV for his father when requested;

• although Christopher Bavin had originally contemplated that his father Harry Bavin might drive one of his (Christopher’s) vehicles as a back-up driver, the intention now was that Harry Bavin would have no involvement with Christopher’s business, either as manager or driver;

• Christopher Bavin had been trading as Lincolnshire Bio Fuels since around April 2022. The business involved tree felling and removal, site clearance, manufacture of wood chipping and biofuel and firewood production. He currently used vehicles to transport wood and other waste from work sites and to customers. Copies of customer orders for logs and of quotations for tree works issued by Christopher Bavin were provided;

• if the application were granted, Christopher Bavin intended to operate one 26 tonne HGV with a crane. The vehicle, CE02 UOK, was currently VOR and was insured in Christopher Bavin’s name only;

• Christopher Bavin had engaged Logico NE Ltd, a transport consultancy, to advise him on and assist with compliance;

• a maintenance contract with S&P Garages Ltd (a Mercedes dealership) had been signed;

• a 10 week interval between safety inspections was proposed;

• an undertaking for an audit after six months was offered. Christopher Bavin would also undertake to employ an external transport manager if the traffic commissioner felt this to be necessary.

5.1 Evidence of Christopher Bavin

Mr Bavin explained that he needed a 26 tonne vehicle for the bigger contracts. His current business involved purchasing wood from his father for cash and breaking that wood down into firewood and biomass. Logs were sold to customers, who generally paid cash.

I asked why the bank statements showed little evidence of trading activity, even though I had been told that the business had been going since April 2022. Christopher Bavin explained that his business could not get properly started until he had authority to use an HGV. I observed that his intended business seemed to be of a very similar nature to that of his father Harry Bavin. Christopher Bavin said that this was the industry he knew.

I asked why a safety inspection interval of 10 weeks (the same as the interval on Harry Bavin’s former licence) was being proposed for a 21 year old vehicle. Christopher Bavin said that he would apply a lower interval if necessary. I asked what form of brake check was being proposed: Mr Bavin said that he would rely on Logica for advice on that.

5.2 Concluding remarks

Mr Jones stressed that there was sufficient evidence to show that it was Christopher Bavin’s intention to exclude his father Harry from the business entirely. He was prepared to offer undertakings to continue to use Logica to assist with compliance and to be audited after six months. Christopher Bavin was a person I could trust and his application should therefore be granted.

6. Consideration

6.1 Fitness

I remain concerned that Christopher Bavin’s business is insufficiently distinct from Harry Bavin’s. Indeed, Christopher Bavin does not appear to have much of a business at all currently: it became clear during the hearing that the description of the work of the vehicles and the quotations for tree works were based on plans for the future (assuming the licence application were granted) rather than a description of what is happening now. That explained the paucity of bank transactions. I had assumed that the reference to “vehicles” in paragraph 20 of Mr Jones’s submission referred to vehicles of 3.5 tonnes or less, but Christopher Bavin confirmed during the hearing that he had no such vehicles. This is not a case of an established business seeking to expand, but of an applicant seeking authorisation to operate precisely the category of vehicle which a near relation has recently been prevented from operating.

In the case of A S Adams Ltd (T/2015/62), the Upper Tribunal confirmed that traffic commissioners were entitled to take into account family relationships and the regulatory history of parents and the businesses which they run. If Christopher Bavin was intending to operate a skip hire or container operation, I would have been able to conclude that it was sufficiently different from Harry Bavin’s operation for concerns about fronting to fall away. But the intention is to operate in the same sector, and indeed to fill the HGV-shaped hole left in Harry Bavin’s business by the revocation of his operator licence.

I also refer to paragraph 54 of the Senior Traffic Commissioner’s Statutory Guidance Document No 1 which states that “When concerns are raised that an applicant could be a ‘front’, they will need to do more than make bare assertions and rely on their good character to satisfy a traffic commissioner that there will be “clear blue water” between the applicant and the [other] entity.” On the evidence presented, I cannot be satisfied that, if the licence application were granted, there would be sufficient clear blue water between Christopher Bavin’s business and that of Harry Bavin t/a B&B Tree Specialists. They would be living in the same house and operating from the same premises in exactly the same business sector.

It follows that I cannot be satisfied that the applicant is fit to hold an operator’s licence (Section 13B of the 1995 Act refers).

6.2 Maintenance arrangements

Moreover, although Christopher Bavin has attended an operator licence management course (OLAT) – a point in his favour -  he did not come across to me as someone who was on top of the issues. He seemed unaware, until I reminded him, that a 10 week safety inspection interval was not appropriate for a vehicle more than 20 years old. He was unaware of what kind of brake tests would be carried out. He was remarkably incurious about why his father’s licence had been revoked, saying he was not aware of the reason. [The essential reasons were failure to have timely safety inspections and a poor MOT pass rate]. I was unable to satisfy myself that the applicant had made satisfactory arrangements for the maintenance of vehicles (Section 13C(4) of the 1995 Act refers), especially in the light of the compliance failings on his father’s licence.

7. Decision

The application is thus refused under Sections 13B and 13C(4) of the 1995 Act.

Nicholas Denton

Deputy Traffic Commissioner

21 September 2023