Decision

Decision for Com Utilities Ltd

Published 8 November 2024

1. IN THE NORTH WEST OF ENGLAND TRAFFIC AREA

2. COM UTILITIES LTD OC2059962

3. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

3.1 In the matter of the Goods Vehicle (Licensing of Operators) Act 1995

4. Public Inquiry held at Golborne on 21 October 2024

5. Background

Com Utilities Ltd (“the operator”) has held a restricted goods vehicle operator’s licence OC2059962 since 22 November 2022 authorising the use of one vehicle. Its currently authorised operating centre is at Unit 2, Bracewell Avenue, Poulton Le Fylde.

The sole director of the operator is Mark Joseph Wood

On 9 January 2024, the Operator applied to vary the licence by increasing the number of vehicles authorised to five vehicles. It also applied to vary its operating centre although confusingly the proposed new operating centre appeared to be the same address as currently authorised.

The application prompted the DVSA to arrange a maintenance investigation visit on 23 April 2024.

On attending at the authorised operating centre (a car sales site), the Vehicle Examiner was informed that the occupiers had no knowledge of the operator of a third party’s goods vehicle being parked there.

Mr Wood subsequently provided a letter from a confectionary manufacturer dated 12 June 2024 explaining that he had permission to park a goods vehicle at their premises on the basis that he was a family member. The premises described were at Unit 1, Welcome Court, Bracewell Avenue. This is understood to be a neighbouring unit to that authorised on the licence. The letter also indicated that Mr Wood had given notice he no longer required the space from 1 August 2024.

Mr Wood in his own response to the DVSA received on 28 May 2024 stated that he was moving to a new yard by the end of the following week. To date no application has been received to vary the operating centre to any address.

Vehicle Examiner Robinson also made other unsatisfactory findings during his visit. He was unable to inspect the vehicle in possession as it was apparently being serviced. There was evidence of stretched inspection intervals. Mr Wood was unable to produce evidence of a driver defect reporting system. He claimed that the defects were recorded using an app-based system and that he would send records to the DVSA. No such records were produced. It was also apparent that there was a lack of systems for recording wheel re-torquing and tyre management. There were no written records of driver training and instruction on load security. VE Robinson’s assessment of Mr Wood as responsible person for the licence was “unsatisfactory” because the visit suggested he was only exercising partial control over compliance and could not produce evidence of continuing professional development.

Mr Wood in his response said that the Checked Safe app for driver defect recording was being introduced for the drivers by the end of the following week. This suggests the app was not previously in use contrary to the impression given to VE Robinson at his visit. Mr Wood gave assertions that all the other issues would be addressed but did not provide any supporting evidence.

These matters were brought to a traffic commissioner’s attention, and it was determined that this public inquiry should be called to consider the apparent shortcomings and if the requirements for the variation application were met.

Neither the Operator nor its director had attended a public inquiry previously or otherwise come to the attention of the Traffic Commissioner before.

6. The Call to Public Inquiry

The operator was called up to public inquiry by letter dated 16 September 2024.

The call up letter gave notice that the grounds for regulatory action in Sections 26(1)(a), 26(1)(e),26(1)(f) and 26(1)(h) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) were to be considered as well as the provisions for disqualification in Section 28 of the Act. The variation application was to be considered having regard to the requirements in Section 13B, 13C(4) and 13D of the Act.

7. The Public Inquiry

On 7 October 2024 Mr Wood sent a message to the Office of the Traffic Commissioner (OTC) asking for the hearing to be adjourned as he had recently [redacted] and did not feel up to working. I directed that Mr Wood be asked to provide medical evidence and that he confirm the current position as regards his operation of a goods vehicle.

Mr Wood responded by providing [redacted]. The documents submitted did not address Mr Wood’s current fitness to work or his ability to attend the public inquiry.

Mr Wood also belatedly submitted some vehicle maintenance documentation. These documents and Mr Wood’s covering e-mail suggested the business was still in operation and the vehicle remained in regular use. Mr Wood did not explain who was responsible for managing the use of the vehicle, if he remained absent from work.

The documents submitted fell well short of covering the list directed to be sent before the inquiry. Only two recent inspection sheets were supplied, and they indicated another stretched inspection interval. The operator failed (without explanation) to provide evidence of its financial resources contrary to the express direction made in the call up letter.

In the correspondence, Mr Wood again referred to operating from a “new yard”.

I declined to adjourn the hearing as insufficient evidence had been provided to satisfy me that Mr Wood was truly unable to attend. Mr Wood was informed of my decision and invited to submit further evidence. I also asked that Mr Wood confirm the address from which the vehicle was currently being operated and that he be reminded that the operating centre authorised under the licence remained at Unit 2, Bracewell Avenue.

The Public Inquiry was heard at Golborne today. The Operator did not appear and was not represented. Mr Wood did not provide any further information to my office.

I considered Paragraph 5(7) of Schedule 4 of the Goods Vehicle (Licensing of Operators) regulations 1995 and the guidance in the Senior Traffic Commissioner’s Statutory Document Number 9: Case Management. I am satisfied that proper notice of the hearing has been given to the operator and its sole director Mr Wood and that they have been given a fair opportunity to attend or otherwise provide evidence to explain their absence. I consider that it is appropriate to proceed to a determination of the public inquiry in their absence.

8. Decision

8.1 Variation Application

In relation to the variation application, the onus is on the operator to demonstrate that it meets the statutory requirements set out in the Act.

I find the operator has failed to demonstrate that there are satisfactory facilities and arrangements for maintaining the additional vehicles proposed to be used under the licence in a fit and serviceable condition as required by Section 13C(4) of the Act. I make this finding having considered the evidence provided by the DVSA of the unsatisfactory manner in which the operator is complying with its current licence authorising the use of one vehicle. The operator has failed to produce sufficient evidence to reassure me that it has fully addressed the issues identified by the DVSA and that it would be able to maintain any additional vehicles to the required standard.

The operator’s failure to provide up to date evidence of its financial resources means that I cannot be satisfied it meets the requirement of Section 13D of the Act that the provision of the facilities and arrangements for maintaining the vehicles in a fit and serviceable condition is not prejudiced by reason of the applicant’s having insufficient financial resources for that purpose.

Finally in relation to the variation application, I find that the operator has failed to demonstrate the requirement in Section 13B(1)(a) of the Act that it is not unfit. In addition to the findings above in relation to the lack of evidence of appropriate maintenance arrangements and financial resources, I have also taken into account the position as regards the operating centre and the operator’s failure to fully cooperate with the public inquiry process.

The operator has not explained why it has applied to vary the licence to the address already authorised on the licence. I am also satisfied that the operator is now using an operating centre different to that authorised on the licence (and named in the current variation application). The director Mr Wood has also failed to produce sufficient evidence to explain his absence from today’s hearing and the failure to fully comply with the case management directions.

Having reached these findings, I direct that the variation application submitted on 9 January 2024 is marked as refused.

8.2 Regulatory action

I have considered the evidence contained within the public inquiry brief and the limited information subsequently supplied by Mr Wood on behalf of the operator together with the updated report of Vehicle Examiner Robinson.

Based on the evidence of VE Robinson and information supplied by the operator, I am satisfied that the vehicle has not been kept at Unit 2, Bracewell Avenue as authorised under the licence and has been parked elsewhere, in all likelihood since the grant of the licence in November 2022. VE Robinson did not find any evidence that the vehicle had ever been parked at the authorised location. The operator has not sought to challenge that conclusion but has provided evidence that it had permission to park at a neighbouring location. I am concerned there is an absence of evidence that the vehicle was ever actually parked in that location. I also note that if the issue with the operating centre was an error, the operator failed to take the opportunity to correct it when submitting the variation application in January 2024 or after the issue was highlighted by the DVSA visit in April 2024.

In any event, it is apparent from the operator’s correspondence that the vehicle is now being operated from another location. The operator appears to be coy about disclosing that location and has certainly taken no action to regularise the position by submitting a further application to vary the licence by authorising a new operating centre.

Consequently, I find it is more likely than not that the operator has been using an unauthorised operating centre or centres for an extended period and the grounds for regulatory action in Section 26(1)(a) of the Act are met.

This finding means that I am also satisfied the operator has failed to fulfil the statement it made on applying for the licence, about the location where the vehicle would be normally kept. Additionally, the DVSA evidence (including that commenting on the most recent documents supplied by the operator) shows that it is not fulfilling the statement made that its vehicle would be inspected at 8-week intervals. These matters satisfy the grounds for regulatory action in Section 26(1)(e) of the Act.

The contents of the DVSA report also lead to a finding that the operator has not kept its vehicle fit and serviceable, does not have an effective driver defect reporting scheme and has failed to keep records for the required 15 months. The operator undertook to comply with all those matters when it applied for the licence. The failure to honour those undertaking satisfies the grounds for regulatory action in Section 26(1)(f) of the Act.

In relation to the driver defect process, I draw attention to the unsatisfactory information provided by Mr Wood. At the time of the DVSA visit, he sought to explain the absence of records of driver defect reporting as being attributable to the fact they were recorded on an app and needed to be retrieved. Despite being given a generous opportunity by the DVSA to produce those records, they were not supplied. Instead, Mr Wood submitted a response referring to the planned introduction of the Checksafe app in the near future. Clearly this suggests that such an app was not in use at the time of the DVSA visit, contrary to the impression Mr Wood gave the vehicle examiner at the time.

Evidence has been provided last week of a screenshot apparently from a Checksafe app. The operator has not explained what that screenshot is meant to show. It certainly does not prove that there is an effective and consistent system of driver defect checks in place.

The operator has not complied with the case management directions. It did not provide evidence in a timely manner and the information provided falls well short of what was required. The operator has failed to provide evidence of its financial resources to support the variation application. I have documented above my concerns about the use of unauthorised operating centres. All of these matters combine to result in a finding there has been a material change in the circumstances of the licence holder, specifically as to its fitness and financial resources.  The grounds for regulatory action in Section 26(1)(h) of the Act are met.

I have considered what form such action should take.

I have balanced the positive and negative features of the case and taken account of the Operator’s fitness as it appears at today’s date.

In the absence of the operator today, there are very few positive features I can identify although I note the absence of evidence of any prohibitions or an exceptionally low MoT pass rate.

 On the other hand, I identify the following negative features:

• The use of unauthorised operating centres (especially after the most recent move) has allowed the operator to enjoy an unfair commercial advantage by not competing the variation application that a compliant operator would have undertaken.
• At the time of the DVSa visit there was effective management control and insufficient or no systems and procedures in place to prevent operator licence compliance failings.
• The operator has failed to produce sufficient evidence of changes made to ensure future compliance.
• The operator failed to co-operate with the enforcement investigation by failing to produce all the maintenance records requested, specifically those related to driver defect reporting. I find the operator misled the vehicle examiner about the existence of those records.

The negative features far outweigh any positive features, and I am satisfied that this is a case that falls in the category of “serious” to “severe” for the purposes of assessing the starting point for regulatory action.

I have gone on to consider the questions set out by the Upper Tribunal in Priority Freight 2009/225 and Bryan Haulage (No.2) 217/2002 before determining the level of regulatory action.

The Priority Freight question requires me to ask if I can have confidence that the operator can be trusted to be compliant in future. In view of the evidence that I have seen to date and the failure of Mr Wood as sole director to fully cooperate with the public inquiry process, I cannot have any confidence that the operator in his control can be so trusted in future.

I have then considered the Bryan Haulage question of whether the operator deserves to be put out of business. In determining the proportionality of any decision, I have taken account of the seriousness of the previous shortcomings in compliance and the lack of evidence that those shortcomings have been understood and addressed. In the absence of the operator today, I have limited information as to the impact of any action on the business. Accordingly, on the information that I have available, I am satisfied it is proportionate to direct the revocation of the licence.

Turning to the question of disqualification, as Mr Wood is the operator’s sole director, I consider it is appropriate to approach the issue as one for both the company and its individual director.

I have again balanced the same positive and negative features as identified above in relation to regulatory action are equally pertinent to the question of disqualification. The negative features outweigh the positives, and I consider a period of disqualification is justified.

In deciding upon the length of the disqualification, I have taken account of paragraph 107 of the Senior Traffic Commissioner’s Statutory Document Number 10 which states that for an operator’s first Public Inquiry, consideration of a disqualification period of between 1 and 3 years may be appropriate.

There are some serious elements to this case, but I balance this with the fact that this is the first public inquiry for the operator. I also do not discount the possibility that the operator and/or Mr Wood could successfully persuade a traffic commissioner in future that they could be trusted with an operator’s licence. However, I consider that a period of disqualification is necessary for Mr Wood to properly reflect on the issues that have led to this licence’s revocation and to consider what actions he needs to take to demonstrate his rehabilitation.

I have determined that this purpose can be achieved by a period of disqualification for 12 months for both the operator and Mr Wood as director.

I defer the effective date of the revocation and disqualification orders for 28 days to allow proper notice to be given and for the operator to make arrangements for the orderly wind down of the business.

If the operator wishes to make representations or present further evidence before the revocation and disqualification take effect, I would be prepared to reconsider my decision. Any further information must be passed to the Office of the Traffic Commissioner at Golborne by no later than 11 November 2024 and must include the following:

• [redacted]

• Confirmation of the current address where the vehicle is usually kept and an explanation why no variation application has been submitted to authorise that use.

• Evidence of the operator’s availability of finance in the form of bank statements for the last 3 months (or other acceptable evidence as set out in the Senior Traffic Commissioner’s Statutory Document Number 2).

• Evidence of all driver daily defect reports completed since 14 June 2024 and all wheel removal/retorque records for the same period (for all vehicles that were in the operator’s possession during that period)

If no further information is received or the information provided is insufficient or unsatisfactory, the direction for revocation and disqualification will take effect on 18 November 2024 as set out above.

Gerallt Evans

Deputy Traffic Commissioner

21 October 2024