Decision

Decision for ESL Piling Ltd (OF2059340)

Published 11 January 2024

0.1 In the Eastern Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 ESL Piling Ltd (OF2059340)

2. Background

ESL Piling Ltd holds a restricted goods vehicle operator’s licence (OF2059340) for two vehicles. The licence was granted in October 2022. The authorised operating centre is at Unit 1A, Readmans Industrial Estate, East Tilbury RM18 8QR. The directors of the company are Jason Magney and Jamie Berkhoff.

3. Vehicle stop

On 11 May 2023 one of the operator’s vehicles, SE15 VMX, was stopped at the roadside by DVSA and the Police. The vehicle was issued with an S-marked prohibition (denoting a significant failure in the maintenance system) for an inoperative indicator and badly deflated tyre (only 20psi). The vehicle was not taxed and was not insured. Its tachograph unit was out of calibration. The driver was given three fixed penalties for driving without a card and was also warned about his frequent instances of driving for more than the maximum permitted time without a break.

4. Follow-up investigation

DVSA and the Police attempted to arrange a joint visit to the operator to take place on 21 June 2023. Director Jason Magney postponed the visit as he said he would be on his honeymoon on that date. It later transpired that he had in fact been married for several years.

DVSA vehicle examiner Steven Whawell did attempt to visit the operating centre on 21 June 2023 but the address could not be located.

On 26 July 2023 director Jamie Berkhoff attended the DVSA/Police office at the Blackwall Tunnel, bringing vehicle RX65 ORW for inspection. It was issued with an immediate prohibition for inadequate load security and a delayed prohibition for a leaking brake chamber. Mr Berkhoff had almost no knowledge of the operation, saying that he was a sleeping partner and Mr Magney was responsible for everything. I noted however that the driver of SE15 VMX, when interviewed by Police at the roadside stop on 11 May, had said that his transport manager was a “man called Jamie”.

Following the meeting with Mr Berkhoff, VE Whawell’s maintenance investigation report marked the operator “unsatisfactory” in 11 of the 12 areas examined. The operator appeared to be operating from an unauthorised operating centre, preventative maintenance inspection sheets for vehicle SE15 VMX looked as if they had been created especially for the investigation and much of the information that was supposed to be on the records was missing; only two driver defect reports for both vehicles over several months existed; maintenance facilities were clearly inadequate in that vehicle SE15 VMX incurred a prohibition only two days after the most recent supposed safety inspection. No brake tests of any kind appeared to be carried out.

The company failed to respond to the maintenance investigation report, either within the allotted 14 days or at any time since.                                                                  

5. Public inquiry

In the light of the information from DVSA and the Police, the company was called to a public inquiry by letter of 8 November 2023. The inquiry was due to take place in Cambridge on 14 December 2023. The letter asked the company to produce maintenance records, drivers’ hours records and evidence of finances by 30 November 2023.

On 14 November my clerk received an email signed “ESL Piling Ltd” saying that “I will not be able to attend. I am away on holiday during that period for 4 weeks. If you could reschedule for another time and let me know”. It was not clear who the “I” in the email was.

My clerk responded on 21 November requesting evidence of a pre-booked holiday. He also pointed out that the company had two directors and it was open for the other one to attend. A reply from “ESL Piling Ltd” was received on 30 November 2023 to the effect that “I am away on holiday. I will be in the UK at a caravan site. I have just has [sic] a new born baby and her great grandparent will be seeing her for the first time”. My clerk replied at my behest on 1 December 2023 to say that the inquiry was going ahead on 14 December, as no evidence of any holiday had been provided and it had not been explained why neither director could attend.

None of the requested information relating to maintenance, drivers’ hours or finances has been provided to the inquiry by the company.

The company failed to attend the inquiry in Cambridge today (14 December 2023). I therefore proceeded to make findings and reach a decision on the evidence available.

6. Findings

After considering the available evidence, I make the following findings:

i)         the company has not been using its authorised operating centre (Section 26(1)(a) of the 1995 Act refers). It is not known where the vehicles are being kept;

ii)         the company’s vehicles have incurred serious roadworthiness prohibitions on each of the occasions DVSA/the Police have encountered them (Section 26(1)(c )(iii) refers);

iii)         the company has failed to have its vehicles inspected at the six week intervals it stated upon application. There is evidence that preventative maintenance inspection sheets have simply been created in order to give the impression that inspections have taken place;

iv)         the company has failed to fulfil its undertakings (Section 26(1)(f) refers) : –

i)         to ensure the lawful driving and operation of vehicles. SE15 VMX was untaxed and uninsured when stopped on 11 May 2023;

ii)         to ensure the observance of rules relating to drivers’ hours and tachographs. The driver on 11 May was found to have committed numerous infringements and was issued with three fixed penalties for driving without a card. The tachograph unit was out of calibration;

iii)         to keep vehicles fit and roadworthy. Vehicles have had serious defects on each occasion seen;

iv)         to ensure that drivers report defects in writing. Only two driver defect reports were presented, dated the day of Mr Berkhoff’s visit to DVSA/the Police at the Blackwall Tunnel and the day before.

v)         the company has undergone a material change insofar as it is unable to demonstrate the finances necessary to support its licence (Section 26(1)(h) refers;

vi)         the company has also failed to co-operate with DVSA’s investigation and, in lying about the reason for unavailability, has actively sought to frustrate it.

Because of the company’s refusal to attend the inquiry or engage with the regulatory process, there is nothing to put on the positive side of the balance sheet. There is nothing which would enable me to conclude that this is a company at all likely to comply in the future (the Priority Freight question). All the evidence indeed points to precisely the opposite conclusion. I therefore also conclude that the company deserves to go out of business (the Bryan Haulage question). It has shown complete contempt for the need to operate safe vehicles driven by drivers within the legally permitted hours. I am not prepared to allow the licence to continue a moment longer than necessary.

7. Revocation and disqualification

In the light of the above findings, I am revoking the licence under Section 26(1)(a), (c)(iii), (e), (f) and (h) with effect from 0001 hours on Monday 18 December. In view of the urgency of the need to remove this operator from the road – in the interests of road safety and fair competition - I am not allowing the usual 28 days before the decision comes into effect.

For the reasons outlined above, and having performed the same balancing act described therein, I conclude that the company and its two directors should also be disqualified under Section 28 from holding a licence in the future. The disqualification is for an indefinite period of time, but they may request a hearing before a traffic commissioner if they wish for the disqualification to be time-limited or cancelled. However, given the extent and seriousness of the non-compliance reported on by DVSA and the Police and the attempts to evade responsibility for it, I cannot foresee that the disqualification could be reduced to a period less than five years.

8. Enforcement of this decision

Given the company’s record to date, I have limited faith that it will comply with this decision. I am therefore requesting DVSA and the Police to employ their ANPR and on-road resources to identify and stop heavy goods vehicles used by the company. Any such vehicle they find carrying goods on the public road on or after 18 December 2023 will be liable to be impounded.

Nicholas Denton
Deputy Traffic Commissioner

14 December 2023