Decision

Decision for David Cornwall (OH2012546)

Published 11 April 2024

0.1 In the Western Traffic Area

1. Traffic Commissioner’s Written Decision

1.1 David Cornwall (OH2012546)

2. BACKGROUND

David Cornwall is the holder of a restricted goods vehicle operator’s licence authorising the use of one vehicle from an operating centre at Oakleigh Farm, Kilcot, Gloucestershire. The nature of the business is metal recycling.  The licence was granted by me following a public inquiry on 28 June 2018. The inquiry was called due to a licence previously having been revoked in 2012 and because Mr Cornwall had given an incorrect address on his application form. The application proposed that preventative maintenance inspections would be carried out outdoors every twelve weeks by a mobile mechanic. At the hearing, I gave Mr Cornwall time to provide a maintenance contract for six-weekly inspections, confirm the use of appropriate facilities, to get digital tachograph company and driver cards and to put in place a contract for analysis. These were eventually provided and the licence came in to effect on 5 October 2018 with two undertakings:

• That inspections would be conducted inside a well-lit workshop, and

• That the authorised vehicle would undergo a meaningful brake test at least quarterly.

On 14 July 2023, DVSA Vehicle Examiner Dominic Smith was on duty driving on the A4136 near Brierly in Gloucestershire. VE Smith noticed what appeared to be load security issues on vehicle MX60KGA, a 2-axle flatbed DAF. The truck stopped at some temporary traffic lights long enough for VE Smith to get out of his vehicle and to photograph the load. It comprised of a red scrap car which had a crane arm over it which was chained to the under-run bar. Piled around the car were a large number of large brake drums entirely unsecured and stacked higher than the sides of the vehicle. Photographs are available.

On 2 November 2023, VE Smith undertook a maintenance investigation. He identified considerable shortcomings. I record only the most serious here:

• The listed operating centre was not being used and the vehicle was instead being parked at a farm near Newent.

• Mr Cornwall was unable to provide any maintenance records. VE Smith visited the listed maintenance provider who provided copies of all inspections carried out by them, which numbered only four in total since 2021. All of them had large numbers of driver-reportable defects and large numbers of defects in total. The two most recent inspections were separate by 410 days, rather more than the 42 days committed to at the public inquiry, or even the 84 days which seems to have persisted on the licence record.

• There was no forward planning system and Mr Cornwall said he was unaware of how frequently the vehicle should be inspected.

• Walk-round checks were not recorded.

• There were no risk-assessments for load security and Mr Cornwall was entirely unaware of any of the requirements and commented “she ain’t gone nowhere yet”.

• Mr Cornwall told VE Smith that he had been in front of the Traffic Commissioner in Bristol about ten years ago but could not remember why.

• Roller brake testing was broadly annual, not quarterly as the undertaking required.

• Unsurprisingly, VE Smith’s closing comment was that “the operator has shown no control”

Mr Cornwall responded to the maintenance investigation visit report promising that he would attend relevant training, that inspections would take place every six weeks including a laden brake test, he would keep a copy of maintenance records and many other detailed commitments.

Having been the recipient of similar commitments in 2018, I called Mr Cornwall to a fresh public inquiry.

3. THE PUBLIC INQUIRY

David Cornwall attended the public inquiry accompanied by Camella Hyett.

Proceedings were recorded and a transcript can be made available. In writing this decision, I have referred to my written notes and the audio recordings.

Some documentation had been provided ahead of the hearing. Finances were satisfied as a preliminary matter. No tachograph documentation was provided. Mr Cornwall told me that he hadn’t done much work during Covid. His previous technician had passed away during Covid as had the person who did his tachograph analysis. He has found a new person to do the maintenance. He had a card for someone who could do his tachographs but hadn’t done anything about that until he saw how the hearing went. He did a walk-round check and used his driver card every day.

The vehicle was being parked at Malswick Farm. He had a falling-out with Mr Duffield at Oakleigh Farm. About three months earlier, he had an old boy run in to the front of his truck. He had that repaired and parked the vehicle back at Oakleigh Farm and it got damaged again. No-one would own up to doing it and Mr Duffield wanted to put the rent up. He had been offered to park at Malswick Farm so he had moved. He didn’t know that he had to make an application to move it. Ms Hyett told me it was her fault because they thought they would be OK until then had to renew the licence.

I referred Mr Cornwall to page 30 of the public inquiry bundle. The Vehicle Examiner had identified in red that the stated operating centre wasn’t being used. Mr Cornwall told me that he thought he would wait until he had been to the hearing first.

I asked why the vehicle had not been inspected between 2 September 2022 and 17 October 2023. Mr Parry had died during Covid. I pointed out that was nearly four years ago now and didn’t excuse the lack of inspections through 2023. Mr Cornwall assured me that, if there was anything wrong with it, it got done. It did not seem that it was “kept up together”.

I referred to the October 2023 inspection where five safety critical defects and five other defects were identified so it did not appear that the vehicle was “kept up together”.

Mr Cornwall could not work with a 3.5 tonne vehicle. He needed a hiab. If I revoked the licence, Mr Cornwall would “go in to Gloucester and sign-on the Social”. He had eight or nine months before he hit retirement age and he would just “jack it in”. He had no other way of earning an income.

I reserved my decision and concluded the hearing. Mr Cornwall handed up a recent roller brake test report and PMI.

4. CONSIDERATION AND FINDINGS OF FACT

The stated operating centre is not in use. Whilst he told me that he fell-out with the landlord about 3 months ago, he had struggled to remember the name of the site when asked by VE Smith in November 2023. No attempt had been made to regularise the situation despite it being clearly marked as unsatisfactory in the maintenance report and being cited as a ground for action in the call-up letter. Section 26(1)(a) is made out. Given the lack of action, I attach significant weight.

Since November 2023, the vehicle has been inspected more or less on time. That is a positive. But I granted the licence after a hearing in 2018 and required at that point a fresh contract for six-weekly inspections. We had clearly discussed the need for regular inspections and recorded an undertaking for quarterly roller brake testing. Mr Cornwall told me that his former maintenance provider had passed away during Covid and seemed surprised when I pointed out that was coming up to four years ago. Prior to November 2023, there were only four inspections over a two-year period with over a year between them at one point. Whilst performance over the past four months has been better, it does not wipe clean years of non-compliance. The condition of the vehicle when eventually produced for inspection clearly shows safety-critical defects. Section 26(1)(e) is made out and I attach significant weight.

There has been no tachograph analysis for a number of years. No attempt at all had been made to correct that prior to the hearing other than Mr Cornwall seemingly having been handed a business card for a transport consultant. Whilst the working week described by Mr Cornwall is unlikely to trouble the drivers’ hours or working time rules, the law requires that a driver card be downloaded as an absolute minimum every 28 days and the vehicle unit every 90. The complete failure to do so goes directly to Mr Cornwall’s fitness to hold a licence.

Mr Cornwall had no records of his daily walk-round checks when VE Smith visited in November. There has been some improvement since but, again, a few weeks of compliance between a DVSA visit and a public inquiry do not wipe clean a record of gross non-compliance over a period of years. Mr Cornwall had not kept any of preventative maintenance inspection records at all. Section 26(1)(f) is made out and again I attach significant weight.

This case started with a load security issue. Mr Cornwall seems absolutely unconcerned that he is driving around with large chunks of scrap metal lacking any security. In his response to the Examiner, he says: “I don’t recall having any issues with lost loads”. That might be relevant when he is moving a single scrap car but I do wonder how he would know whether an individual piece of scrap metal had fallen off. The photographic evidence of load of brake drums is as bad as I have seen for some time. He does go on to say that he has bought straps and a load sheet but there is no evidence. In the same response, Mr Cornwall says that he will update the operating centre address on the licence but nothing has been done. I can therefore attach limited weight to anything he says.

In the case NT/2013/82 Arnold Transport & Sons, the Upper Tribunal said:

“The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation.

It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute. It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above). We agree that this is a helpful and appropriate approach. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry. It will be for the Head of the TRU to assess the position on the facts of each individual case. However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future”

In not having his vehicle inspected every six weeks and in not investing in tachograph downloading and analysis, Mr Cornwall gained a competitive advantage. In not paying to advertise his new operating centre nor to vary his licence to add it; he gained a competitive advantage. His corner-cutting led to the vehicle in use with safety-critical defects. His lack of action even at the date of the inquiry shows a total contempt for the regulatory regime. I find he is no longer fit to be the holder of a restricted goods vehicle operator’s licence. Section 26(1)(h) is made out and I attach significant weight.

5. DECISION

Pursuant to adverse findings under Sections 26(1)(a), 26(1)(e), 26(1)(f) and 26(1)(h), the licence is revoked. To allow for an orderly run-down of the business, revocation will take effect from 23:59 hours, 20 April 2024.

Kevin Rooney
Traffic Commissioner

19 March 2024