Decision

Decision for Enviroblast ICS Limited (OC1144624)

Updated 19 April 2021

1. DECISION OF THE TRAFFIC COMMISSIONER FOR THE NORTH WEST OF ENGLAND

In the matter of the Goods Vehicles (Licensing of Operators) Act 1995 (‘The Act’)

1.1 PUBLIC INQUIRY HELD VIRTUALLY ON 15 FEBRUARY 2021

1.2 ENVIROBLAST ICS LTD

1.3 LICENCE OC1144624

2. Background

Enviroblast ICS Limited (“Enviroblast”) has held a restricted goods vehicle licence authorising the use of 3 vehicles since 2017 Its authorised operating centre was at Nortex Mill in Bolton and it operated a skip hire business. The operator had not come to a Traffic Commissioner’s attention whilst under its previous ownership.

On or about 1 June 2020 ownership of the company passed to Thomas Mark Poole who was appointed as its sole director and sole shareholder

Since 2019 Mr Poole had been the sole director and shareholder of another skip hire business namely ETA Skips (NW) Limited which traded from premises at Platt Fold Street in Leigh. This was a continuation of a business previously established by Mr Poole’s father trading as a separate company, ETA Skip Hire Limited. Mr Poole was not a statutory officer of that latter company which was dissolved in December 2020.

Mr Poole had not previously held an operator’s licence as a director or individual. ETA Skips (NW) Limited did not hold an operator’s licence but submitted a new application on 4 February 2021, 10 days before the public inquiry.

Evidence emerged of several aspects of non-compliance with the requirements of its licence by Enviroblast which led to the call up to public inquiry.

This included evidence that the operator had changed its operating centre and an application for variation to use Platt Fold Street was submitted on 26 January 2021(after the call up to public inquiry)

3. Public inquiry

The public inquiry was convened on 15 February 2021 and heard virtually with all parties located remotely. Present for the operator was its sole director Thomas Mark Poole. The operator and Mr Poole were legally represented by Mr Scott Bell of Backhouse Jones solicitors. DVSA Vehicle Examiner Paul Snelson also gave evidence (although his report was not the subject of any significant dispute).

In advance of the hearing I was provided with bank statements for ETA Skip Hire (NW) Limited and a selection of driver defect reports for vehicles PF08 SSK and HX06 LDL. I was also provided with safety inspection record sheets for those two vehicles competed by Fieldings Commercials. No other documentary evidence relating to the operation of vehicles was submitted by the operator.

In May 2020 the DVSA received information that ETA Skip Hire Limited was using an unauthorised operating centre at the Platt Fold Street premises. The company was sent an invitation to apply for an operator’s licence but did not respond.

In August 2020 Vehicle Examiner Paul Snelson visited Platt Fold Street and saw several goods vehicles in the livery of “ETA Skip Hire” enter the site. He recorded the registration number of one such vehicle as PF08 SSK. That vehicle had been recorded on the Enviroblast licence since 4 June 2020 although the registered keeper details remained as its previous (unrelated) operator. The vehicle was recorded at the DVLA with a statutory off-road notice (SORN) and that remained the position on the date of the public inquiry.

VE Snelson also observed 3 other goods vehicles in ETA Skip Hire livery as he went around his duties in the Leigh area in August 2020. One was HX06 LDL which was registered to Enviroblast and had been recorded on the operator licence since 2019.

Another vehicle observed by VE Snelson was LT59 NPE which was registered with ETA Skip Hire as its recorded keeper but was not currently recorded on any operator’s licence having been removed by its last (again unrelated) operator in April 2020. The last MoT for that vehicle had expired on 30 January 2020 and its road tax had expired on 28 May 2020.

The fourth vehicle observed was SF56 EOW. That vehicle remained registered to a previous unrelated licence holder who had removed it from their licence in February 2019. It was not currently registered on any licence and its last MoT certificate had expired on 2 February 2019. The road tax had expired on 1 July 2020.

Automatic Number Plate Recording evidence was sought, and this confirmed that all 4 of the above vehicles had been sighted on public roads on numerous occasions between 12 October 2020 and 11 January 2021.

VE Snelson visited Enviroblast’s authorised operating centre at Nortex Mill in Bolton in November 2020. He could not locate the unit supposedly in use by the operator and was told by other occupiers that they had moved on. The maintenance provider named on the licence also told VE Snelson that they had not had any recent dealings with the operator and believed the company had been sold.

VE Snelson said he had tried to arrange a meeting with Mr Poole, but he initially claimed he was away and then that he was self-isolating due to the pandemic. Mr Poole did try to contact VE Snelson subsequently but by then the matter had been referred to the Traffic Commissioner.

The landlord at Nortex Mill provided information that Enviroblast had left the premises on 31 May 2020. They did however concede they had since become aware of another tenant who had been sub-letting to Enviroblast for a short period without permission. This arrangement was directed to cease.

These were the core elements that led to the calling of the public inquiry.

4. Consideration

I will first set out the facts of the case that do not appear to be in dispute. There are further findings of fact which I made and will detail later in this decision together with Mr Poole’s attempt to explain some of these matters.

The facts not in dispute are as follows:

• There was no evidence presented to establish that Enviroblast met the requirements of financial standing. Mr Poole has not used a bank account in Enviroblast’s name since he acquired the company in June 2020. The business’ trading activity was undertaken through a bank account in the name of [REDACTED].

• Between June and December 2020 Enviroblast did not use its operating centre at Nortex Mill. Its purported operating centre was at Platt Fold Street during that time, but this was not authorised.

• Thomas Mark Poole was previously a director of a company named Direct Marketing Organisation Limited at the time it entered liquidation in 2015. That relevant insolvency was not disclosed when Mr Poole’s appointment as director of Enviroblast was notified to my office on 2 June 2020.

• [REDACTED].

• [REDACTED].

• The operator had changed maintenance provider without notifying my office. There was no evidence provided of a contract with the new maintenance provider.

• Vehicle HX06 LDL had been used regularly on public roads by the business controlled by Mr Poole since 1 November 2020 when its road tax had expired, and this use was continuing.

• Vehicle PF08 SSK had been used regularly on public roads by the business controlled by Mr Poole since August 2020 when it was recorded as SORNed with the DVLA. The vehicle had also been used regularly on public roads after its MoT expired on 31 December 2020

• Vehicle LT59 EOW had been used regularly on public roads by the business controlled by Mr Poole since at least June 2020 when its road tax had expired, and MoT had expired

• Vehicle SF56 EOW had been used regularly on public roads by the business controlled by Mr Poole since at least July 2020 when its road tax had expired, and MoT had expired

• ETA Skip Hire (N W) Limited was in possession of goods vehicles SF56 EOW and SN05 EMB prior to Mr Poole’s acquisition of Enviroblast in June 2020.

• The drivers used by the business had until recently been engaged on a self-employed basis and paid in cash.

In relation to financial standing, Mr Poole claimed that he had not been able to access Enviroblast’s bank account since acquiring the business as a previous director (who resigned in January 2020) was refusing to cooperate with the necessary authority. I struggle to understand why this is a difficulty given the Companies House record clearly shows that person’s removal. Mr Poole did not provide any documentary evidence to support this assertion.

The statements provided for ETA Skip Hire (NW) Limited did show the required level of financial standing for 3 vehicles on a 3-month average [REDACTED]. This was only achieved as a result of [REDACTED]. One was for £[REDACTED] and Mr Poole claimed [REDACTED]. The second was a deposit of £[REDACTED] which Mr Poole claimed was a [REDACTED]. He could not provide documentary evidence to support either assertion.

The statements did not record any payments consistent with fuel use by goods vehicles. Mr Poole claimed this was because fuel was paid in cash. There was also no evidence of wage payments and Mr Poole revealed that drivers were self-employed and paid in cash. He said it was only when receiving advice ahead of the public inquiry that he became aware such a practice was improper.

It was also clear that Mr Poole personally was withdrawing large amounts from the account with the effect that more money was being drawn out in November and December 2020 than was paid in. In total over the 3 months Mr Poole had withdrawn over £[REDACTED].

I found Mr Poole’s explanation for these withdrawals to be unconvincing as he claimed they were to reimburse him for various expenses but without any supporting evidence. The monthly payments of £[REDACTED] he claimed were to [REDACTED]. Mr Poole appeared unsure when asked what amount his [REDACTED] and could not explain why the amount each month came to precisely the same round figure.

It was also conceded that there was no documentary record of the agreement to sell Enviroblast to Mr Poole. Mr Poole claimed that negotiations to purchase Enviroblast started in March 2020 and that he saw it as an opportunity to grow his business. I am however concerned that the acquisition of that licence holding company coincided with Mr Poole’s existing company ETA Skip Hire (NW) Ltd coming under scrutiny for unauthorised use of goods vehicles.

VE Snelson produced a publicity type photograph open sourced on Google and date stamped May 2020 which showed goods vehicles SF56 EOW and SN05 EMB in ETA Skip Hire livery alongside a smaller Transit type vehicle.

Mr Poole admitted that the vehicles were in possession of ETA Skip Hire (NW) Limited prior to June 2020. He denied they had been used on road for the purposes of the business. He said he had arranged for them to be marked in the company livery and assembled merely for publicity purposes. Given the other examples of blatant disregard for the requirements of operator licencing by Mr Poole, I find this explanation highly improbable.

I am satisfied on the balance of probabilities that ETA Skip Hire (NW) Limited was operating goods vehicles prior to Mr Poole’s acquisition of Enviroblast in June 2020 and when no operators’ licence was in force for the former company.

It is also evident that in the second half of 2020 Mr Poole’s business was in possession of 4 goods vehicles. Mr Poole also insisted that he had not operated more than the 3 vehicles authorised by the Enviroblast licence at any given time.

This is simply not consistent with the ANPR evidence which suggests all 4 vehicles were in regular use in the period between October and mid-January 2021. Further publicity photographs were also seen by me apparently dating from around November 2020 and taken at Platt Fold Street. These showed all 4 vehicles in their ETA Skip Hire livery with a driver in front of each. I am satisfied that it is more likely than not that 4 goods vehicles were being operated at the same time.

In any event, I am also satisfied that those vehicles were not being operated by the licence holder Enviroblast but by the unlicensed entity. I have seen no evidence to suggest that company has traded in any way since it was acquired by Mr Poole in June 2020. The safety inspections sheets provided were all addressed to ETA Skip Hire and the bank statements of ETA Skip Hire (NW) Limited confirm it paid for those inspections.

The fact that both companies are in common ownership does not make this any more acceptable in the circumstances of this case.

It is also clear that all 4 vehicles have been operated persistently without valid road tax. 3 of the vehicles have also been operated persistently after their MoT certificates had expired.

Mr Poole offered a variety of explanations for this state of affairs. He claimed to be unaware of the status of some of the vehicles. In relation to the tax status of the vehicles, Mr Poole vaguely claimed that some technical problem had prevented him from taxing the vehicles using the online system. Even it was true that he had tried to tax the vehicles, that would also infer he knew that they were untaxed when he used them thereafter.

In relation to the use of PF08 SSK after the MoT had expired, Mr Poole claimed (without supporting evidence) that he had been told by the maintenance provider that the MoT expiry date had been extended due to the pandemic. In fact, the MoT expiry date on 31 December 2020 already reflected the extension provisions. Mr Poole allowed this vehicle to continue to be used regularly on public roads into February 2021 despite being served with the brief for the public inquiry which clearly set out the MoT status of that vehicle. Indeed, were it not for a recent mechanical issue, the vehicle would still have been in use on the day of the public inquiry.

Mr Poole’s claim that he was innocently misled as to the position on that vehicle is also wholly undermined by the fact he has operated two other vehicles when their MoT certificates had expired months previously.

SF56 EOW had not been the subject of a valid MoT certificate since 28 February 2019 which appears to be around the time it was acquired by the ETA Skip Hire business (whether that was the original company, or the NW company established by Mr Poole).

Mr Poole also claimed to have acquired LT59 NPE in around May 2020. Its last MoT certificate had expired in February 2020. He said he purchased it cheaply as it needed repairs. I pressed him on whether he knew it was not the subject of a valid MoT when he bought the vehicle. Mr Poole said he did not know. Frankly, it beggars belief that anyone would buy a vehicle without checking such a fundamental detail about its MoT status.

The cumulative effect of the position in relation to these vehicles is that I find that Mr Poole knowingly allowed them to be used on public roads when he knew they were untaxed and did not have valid MoT certificates.

In relation to the operating centre issue, Mr Poole sought to lay the blame with [REDACTED], the former director of Enviroblast. Mr Poole said that [REDACTED] had updated the online licensing system when transferring ownership of the company. Mr Poole claimed that [REDACTED] had assured him he had transferred the operating centre details from Nortex Mill to Platt Fold Street.

It is correct that the online system does show that [REDACTED] updated the system on 1 June 2020 to remove his name as director and add that of Mr Poole. However there is no evidence of an application to vary the operating centre being made at that time.

On 2 June 2020 there are a series of entries to the system in Mr Poole’s name which include changing the correspondence address of the operator and recording PF08 SSK on the licence. Mr Poole said that these changes were in fact made by [REDACTED] while he showed him how to operate the system.

Mr Poole insisted he was unaware that the operating centre at Platt Fold Street was unauthorised until contacted by my office in December 2020. Mr Poole said he had immediately started to keep the vehicles back at Nortex Mill from then, having reached an agreement with one of the tenants there. The rent payment was yet another cash transaction with Mr Poole unable to produce any written confirmation of the arrangement.

Whether or not the use of use of Nortex Mill resumed in December 2020, what is clear is that the vehicles were operated from the unauthorised premises at Platt Fold Street between June and December 2020.

There is insufficient evidence for me to conclude that Mr Poole deliberately allowed the operating centre issue to continue. However at the very least he is culpable for completely failing to check that the operator’s licence complied with the basic requirement of an authorised operating centre.

Mr Poole also sought to hold [REDACTED] responsible for the fact that the form nominating him as a director was submitted with the questions about involvement in previous insolvent companies [REDACTED] wrongly answered in the negative. Mr Poole insisted that had he known about those questions he would have ensured they were answered accurately and would have disclosed the relevant matters.

The online system confirms that it was [REDACTED] who apparently submitted the relevant form. As such, I hold back from a finding that Mr Poole failed in person to complete the form accurately. Nevertheless I do find that Mr Poole was under a duty to make those disclosures to my office when being appointed as director and he ought to have ensured that any information provided by another person on his behalf was complete and accurate.

The fact of Mr Poole’s directorship of the previously liquidated company is not a matter I consider needs to be examined in detail for the purposes of this hearting, other than the point that it clearly fell to be disclosed on Mr Poole being added to this licence as a director.

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I asked Mr Poole why he had established a new company to take over the business, when he could simply have taken over ETA Skip Hire Limited (as he did subsequently with Enviroblast). Mr Poole was vague as to the reasons why he had approached the matter that way. Again there appears not to have been a written agreement for the transfer of assets between the two companies. Mr Poole was unable to give a precise date when ETA Skip Hire (NW) Limited had started operating the skip hire business other than to point to the issue of the waste permit.

Mr Poole denied my suggestion that he had established the new company as a device to allow the skip hire business to continue after the original company was prosecuted.

I am not convinced by that denial as it does appear to be a pattern of repeated conduct by Mr Poole when challenged about his business’ compliance with regulatory requirements. When ETA Skip Hire Limited faced the Environment Agency prosecution, Mr Poole reacted by moving its business to the new company. When ETA Skip Hire (NW) Limited came under scrutiny for unauthorised operation of goods vehicles, Mr Poole decided to acquire another company which already held an operator’s licence. When it became apparent that the Enviroblast licence was in jeopardy, Mr Poole belatedly submitted a new application for an operator’s licence by ETA Skip Hire (NW) Limited.

5. Submissions

In Mr Poole’s closing words to me, he described the situation as a “complete shambles”. He also said he had been working hard over the past 2 weeks to get everything right.

Mr Poole had attended a two-day Transport Manager refresher course the week previous to the public inquiry. One of his drivers also held a CPC qualification and it was intended he should attend a refresher course with a view to taking on responsibility for managing the licence.

Mr Bell in his closing submissions conceded that there was a long list of issues, but that Mr Poole was trying to regularise the position and there were small shoots of recovery.

It was accepted that it was likely the Enviroblast licence would ultimately be revoked, but Mr Bell invited me to suspend it initially for a period sufficient to allow the ETA Skip Hire (NW) Limited application to be considered and granted.

Mr Bell submitted that Mr Poole had not acted out of a deliberate disregard for the licensing regime and was trying to put things right. Mr Bell suggested I could also find that disqualification had been avoided by a hair’s breadth.

6. Conclusions

The first significant finding that I must confirm is that I have not been provided with any evidence of the financial standing of Enviroblast as an operator. As this is a restricted licence, I am concerned in the absence of such evidence that the operator is unable to meet the continuing requirements in sections 13C and 13D of the Act.

I have not been asked to allow a period of grace or given any cause to believe that Enviroblast will achieve the required level of financial standing in future.

In relation to the fitness of the operator and Mr Poole as its sole director, I have considered the guidance in Statutory Document 10 and the balancing factors set out therein. I am struggling to identify any of the positive features mentioned in that document save for the absence of previous regulatory action against the company and Mr Poole in relation to operator licensing. I also note that there is no history of prohibitions or other enforcement action by the DVSA although this must be seen in the context that VE Snelson was unable to complete his investigation as Mr Poole was unavailable.

On the contrary the negative features are considerable and can be summarised as follows:

• Deliberate and/or reckless act/s by the operator which led to undue risk to road safety or unfair commercial advantage. This specifically relates to the unauthorised use of vehicles, the use of untaxed and untested vehicles and the use of an unauthorised operating centre.

• Persistent offending. The operator and Mr Poole have repeatedly allowed the above issues to continue for a period of at least 6 months without addressing them.

• Ineffective management control and insufficient or no systems and procedures in place to prevent operator licence compliance failings. I have not seen any evidence of such systems and even if such systems are in place, the numerous failings suggest they are completely ineffective.

These negative features completely outweigh any positive features. I also determine that the operator and Mr Poole’s conduct is such that it can properly be categorised as “Deliberate or reckless acts that compromised road safety and gave the operator a clear commercial advantage.”. This brings it squarely into the category of “severe” for the purposes of regulatory action in accordance with the starting points in Statutory Document 10.

I have gone on to consider the Priority Freight question. namely, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” The findings of fact I have made in this case can only lead to the conclusion that I cannot have any confidence in future compliance by Enviroblast or indeed any operator under the control of Mr Poole.

I am very clear that this is not a case of a naïve and inexperienced new entrant to the industry who with proper guidance and instruction could be trusted to develop a compliant approach. The failings in this case are of such a basic nature (such as the use of untaxed and untested vehicles on the road) that they cannot be attributed to ignorance. I am satisfied that Mr Poole has shown a deliberate and blatant disregard to road traffic law as well as the requirements of operator’s licensing. He has not sought to address any of the issues until the point when he has realised that seeking to avoid them any further is futile.

I also found much of Mr Poole’s evidence at the public inquiry to be evasive, vague and in some respects bordering on dishonest (for example his denials of knowing the MoT status of some of his vehicles).

[REDACTED].

I have then gone on to consider the question posed in Bryan Haulage, “is the conduct such that the operator ought to be put out of business?” The circumstances of this case are such that I have little hesitation in answering that question in the affirmative. It would be an insult to the majority of other operators in the skip hire and wider transport industry who work hard to try to deliver compliance, to allow such an operator to continue in competition with them.

7. Decisions

I have concluded that the operator by reason of the failings found above lacks the fitness required to continue to hold an operator’s licence and that the grounds for revocation in section 26(1)a, (b), (e), (f) and (h) of the Act are established.

I will defer the date of revocation to allow the orderly closure of the business or for the business to make alternative arrangements for its transport requirements to 17 March 2021.

I have considered whether to disqualify the operator and Thomas Mark Poole under Section 28 of the Act from holding or obtaining an operator’s licence in the future, and from being the director of a company holding or obtaining such a licence. For the reasons outlined in paragraphs 73 to 82 above, and having performed the same balancing act described therein, I conclude that the operator and Mr Poole should be so disqualified.

In deciding upon the length of the disqualification, I have taken account of paragraph 100 of the STC’s Statutory Guidance Document 10 and the suggested starting point of between 1 and 3 years at a first public inquiry. I consider the facts of this case are sufficiently serious that a period above the lower point is justified and I determine that a period of two years is appropriate to protect other road users and to protect compliant operators from unfair competition..

Whilst the application by ETA Skip Hire (NW) Limited for a new licence was not formally before the public inquiry, as a consequence of the decisions above it must inevitably fail. I therefore formally record its refusal.

I also formally record the refusal of the application to vary the operating centre made by Enviroblast.

I do not make an order for suspension as suggested by Mr Bell as the intended purpose of allowing the ETA Skip Hire (NW) Limited application to be concluded is now redundant. For the avoidance of doubt, whilst the revocation of the licence is not effective until 17 March 2021, the operator must not operate any vehicles in the intervening period unless they are taxed, have a valid MoT certificate and are otherwise lawful and safe to be used on a road and comply with the requirements of the operator’s licence.

Gerallt Evans

Traffic Commissioner

for the North West of England

18 February 2021