Decision

Decision for DBC Site Services 2005 Ltd (OG1059433)

Published 4 August 2023

0.1 In the Welsh Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 DBC Site Services 2005 Ltd (OG1059433)

2. Background

DBC Site Services 2005 Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 6 vehicles and 6 trailers, granted on 28 July 2006. The sole director and responsible person on the licence is Dennis Connor and the company is engaged in recycling, involving reclamation of metals and disposal of waste. There is some compliance history, though somewhat historic, consisting of warnings given in 2007 (following non-notification of a conviction) and in 2014 (following prohibitions) and a public inquiry in 2009 at which undertakings were agreed to. There is a specific undertaking on the licence as follows – “All authorised vehicles will have a thorough and effective pre-MOT inspection. Records to be kept for at least 2 years.”

On 10 June 2021, an “S” marked prohibition was issued to one of the operator’s trailers at the roadside, and a further prohibition was issued to the operator’s vehicle towing that trailer. This triggered an investigation by the Driver and Vehicle Standards Agency (“DVSA”) in October 2021. The results of DVSA’s Vehicle Examiner (“VE”) report were unsatisfactory, with compliance failures found. Because of assurances given by the operator at the time, the DVSA did not refer their concerns to me but arranged for a follow up investigation. In January 2023 the DVSA’s Remote Enforcement Office contacted the operator to perform the follow up Desk Based Assessment (“DBA”) into the systems for compliance with maintenance requirements and improvements made since the previous DVSA report. The DBA highlighted a number of shortcomings. Due to the repeated and serious nature of the findings in both reports, the case was referred to my office. By a call up letter dated 9 March 2023, the operator was called to public inquiry to explore the shortcomings identified in those reports.

3. Hearing

The Public Inquiry was originally listed for 13 April 2023 but was adjourned due to the operator’s solicitor contracting Covid. It was relisted for 27 June 2023 and commenced and concluded on that date. Dennis Connor, company director, appeared on behalf of the operator represented by Aled Owen, solicitor, of Harrison Clark Rickerbys. Chris Matthews of RHN Consultancy, transport consultants, attended for the operator and VE Michael Harris attended from the DVSA. I heard oral evidence from Mr Connor and Mr Matthews and submissions from Mr Owen. At the conclusion of the hearing, I indicated that I was reserving my decision and would issue a written decision as soon as possible.

4. Evidence

In addition to the papers in the public inquiry bundle I was provided with a bundle from the operator in advance of the hearing. That included a submission document dated 31 March 2023 from Aled Owen, a statement dated 30 March 2023 from Dennis Connor, an operator report prepared by RHN Consultancy dated 3 April 2023 and financial evidence. Recent maintenance documents had been provided to VE Harris in advance of the public inquiry, as requested in the call up letters, and VE Harris had prepared an update statement for the inquiry, dated 30 March 2023.

The operator did not challenge the DVSA Examiners’ evidence within the public inquiry brief or the update statement produced for the hearing. I do not set out all of the evidence in this decision because it is a matter of record within the bundle and transcript of proceedings.

5. Issues

The public inquiry was called for me to consider whether there were grounds for me to intervene in respect of the licence held by DBC Site Services 2005 Ltd specifically by reference to the following sections of the Act: 26(1), 26(1)(c)(iii), 26(1)(e), 26(1)(f), 26(1)(h), 26(6) and 28.

By letter of 30 March 2023, Mr Owen informed my office that the operator had failed to notify the traffic commissioner of offences that the operating company and Mr Connor had been convicted of under regulation 38 of the Environmental Permitting Regulations. Mr Owen subsequently provided the relevant certificates of conviction from Swansea Crown Court which confirmed that the operator was convicted on 26 November 2019 of 2 offences of depositing controlled waste on land without an environmental permit for which it was sentenced on 19 November 2021 to a fine of £10,000 and a Confiscation Order made for £65,411.78. Mr Connor was also convicted of those 2 offences on that date and sentenced to 20 Months imprisonment, suspended for 18 months and 100 hours unpaid work. He was personally ordered to pay a Confiscation Order for £177,908.13. In addition to the legislation cited in the call up letter, section 26(1)(b) therefore also became a relevant ground for consideration at the hearing.

Given the acceptance by the operator of the failings set out in the evidence, it was suggested to me in the submissions made on behalf of the operator that this case be set in the SEVERE category, with reference to the Senior Traffic Commissioner’s Statutory Document 10, Annex 4 starting points for regulatory action, and that revocation of the licence was necessary. I was asked to delay the coming into effect of an order for revocation to allow the company to apply for a new standard national licence. That type of licence would obviously require there to be a professional transport manager, and assurances would be given going forward that transport consultants would continue to be contractually engaged for a minimum number of hours per month, and an audit would be conducted in 12 months.

6. Findings of fact

The operator admitted that it had failed to notify my office that the company and its sole director, Mr Connor, had been convicted of the serious offences referred to in paragraph 7 above, despite a licence condition requiring it to do so. These convictions were only notified after the call to public inquiry. I did not accept the evidence of Mr Connor that he did not know about this condition, particularly given that he had already received a warning from my office for failing to notify a conviction and had himself notified my office in June 2021 that the company had received prohibitions. Within the brief (pages A21 and A22) was the licence continuation checklist which included the conditions and declaration signed by Mr Connor, as recently as May 2021, to re-affirm his compliance with the conditions. The convictions would very much have been at the forefront of Mr Connor’s mind as both he and the company were, at that time, still awaiting sentence for the offences. I suggested to Mr Connor that he deliberately failed to notify these convictions because he did not want to trigger any further investigation by DVSA or my office at that time, although he maintained that was not the case and that the non-disclosure was an “error”. I find his explanation for the failure quite implausible and section 26(1)(b) of the Act is made out.

It is undisputed that the operator has been issued with prohibition notices by the DVSA within the past 5 years. Accordingly, I find that section 26(1)(c)(iii) of the Act is made out.

Statements made by the operator when applying for the licence have not been fulfilled, namely that the vehicles would be inspected at the 6-week intervals the operator promised they would be and that the operator would abide by licence conditions. The evidence that the operator had failed to fulfil these statements was uncontested and I therefore find that section 26(1)(e) of the Act is made out.

The evidence is clear that the operator failed to comply with the undertakings on the licence that its vehicles and trailers would be kept fit and serviceable as evidenced by the prohibition notices issued and poor initial MOT fail rate. Since the VE’s report and the subsequent DBA, there have been further MOT failures, again for braking performance and tyre condition.

The operator failed to comply with the undertaking that it would keep proper safety inspection, driver defect reports and routine maintenance records. PMI reports were incomplete with insufficient detail of brake testing and tyre pressures not recorded and there were regular late PMI reports.

The operator failed to comply with the undertaking that drivers would promptly report defects that could prevent the safe operation of vehicles and/or trailers and that defects would be promptly recorded in writing. Instances of defects which should have been identified by drivers were found on PMI sheets and driver defect books had repeated defects recorded on subsequent dates with no evidence of timely assessment or repair.

The operator had agreed to a specific undertaking that it would carry out pre-MOT inspections and keep records. It was accepted that it had failed to comply with that undertaking, as reflected by the poor MOT pass rate. Accordingly, I find that section 26(1)(f) of the Act is made out.

On the evidence before me, and applying the civil standard of proof, I find that there has been a material change and that the operator is no longer of the required fitness to hold the licence. I make that finding on the evidence as to the operator’s ability to meet the requirements and undertakings on its licence, the evidence as to the operator’s persistent failure to do so having given assurances about what it would do to prevent reoccurrence, and its failure to notify changes, namely the convictions set out at paragraph 7 above. Accordingly, I make an adverse finding under section 26(1)(h) of the Act.

7. Considerations and Decisions

The submissions on behalf of the operator suggest that this case is in the SEVERE category when considering the appropriate starting point for regulatory action by reference to the Senior Traffic Commissioner’s Statutory Document 10, and that revocation of the licence will be necessary. I would agree, for the following reasons.

There were persistent operator licence failures with inadequate response – many of the same failures identified by VE Harris in 2021 were again present at the time of the DBA and were still present and picked up by VE Harris in his update report for the inquiry hearing; there was ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings; ineffective driver training with ineffective monitoring and disciplinary procedures in place; road safety critical defects, including “S marked prohibitions and a low average first time pass rate at MOT. On the positive side, the operator co-operated with the enforcement investigation.

I’ve considered the situation now and evidence put forward in that regard. Submissions on behalf of the operator accept that progress made has not been sufficient and that failings have not been addressed well. The operator accepts that Mr Connor did not carry out his responsibilities as director and responsible person with sufficient urgency, rigour or clarity. In his oral evidence, Mr Connor stated that he did not have the expertise to be able to ensure compliance with the licence requirements. He said it would take more time to get to the required level, it had been a wake-up call and would endeavour to get things right if given the opportunity to do so. However, this operator was given that opportunity following the DVSA investigation in 2021. It failed to take that opportunity and the same serious concerns were found by the DBA in January 2023. Yet again, the operator failed to take the opportunity to “get things right” as some of the same compliance failures were still being found by the time of the update report prepared by VE Harris for this public inquiry. Even the operator’s own consultant’s report for the inquiry identified that the same concerns persisted – driver reportable defects picked up at PMI, brake testing details incomplete and extended PMI intervals.

The Upper Tribunal has commented in 2009/225 Priority Freight Ltd & Paul Williams that “Promises are easily made, what matters is whether these promises will be kept: actions speak louder than words.” I also remind myself of the guidance from the Appellate Tribunal in NT/2013/082 Arnold Transport & Sons Ltd “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…. 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 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.” Although there appeared to be some improvement since the initial maintenance visit by VE Harris, his evidence was that the maintenance records and evidence received still demonstrated weaknesses in the overall maintenance system and he highlighted ongoing serious concerns in his update statement.

In considering the Priority Freight question, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” I have had regard to the failures I had found proved which were serious, but also the ongoing failures identified in reports prepared for the inquiry. There is an accepted lack of competence within the business which could easily have been remedied long before the inquiry hearing and which was relevant to my adverse finding under s26(1)(h) and my conclusion regarding the operator’s ability (fitness) to manage a licence.

I note the evidence that the operator has now engaged transport consultants to assist it with compliance with maintenance requirements, though only following the DBA earlier this year. It acknowledges that revocation of this licence will be necessary but requests a “period of grace”, to allow it to apply for a new standard licence which will necessarily involve a qualified transport manager. Its intention is also to retain the transport consultant support and it would arrange an independent audit in 12 months. Mr Owen confirmed that the operator seeks a delay in revocation taking effect and requested a delay of 3 months. Given my findings, that suggestion is clearly inappropriate, but revocation is delayed for a period of 6 weeks to allow for the safe running down of the licence.

I have given serious consideration to whether the operator should be disqualified from operating in the future under section 28 of the Act. I have held back from disqualification given that this is effectively the operator’s first Public Inquiry – I have discounted the hearing 24 years ago as historic - but obviously any future application by the company will be carefully considered in view of my findings set out in this Decision. I deliberately make no comment or judgment in favour of any new application and the company will have further opportunity to demonstrate repute and ability to achieve compliance in the remaining period of operation and on application. This licence will be revoked with effect from 23:45 hours on 31 August 2023 to allow a safe run down. It will be for the operator to determine whether it is able to apply for a new licence.

Victoria Davies

Traffic Commissioner for Wales

21 July 2023