Decision

Decision for Gareth Fenlli Clarke & Lee John Clarke T/A CLARKE CONTRACTORS

Published 30 June 2021

0.1 IN THE WELSH TRAFFIC AREA

under the Goods Vehicles (Licensing of Operators) Act 1995 “the Act”

1. OG2017380 – GARETH FENLLI CLARKE AND LEE JOHN CLARKE T/A CLARKE CONTRACTORS (“the operators”)

2. PUBLIC INQUIRY

Heard at Swyddfeydd Penrallt Offices, Lon Fafiliwn, Caernarfon, Gwynedd, LL55 1BN

on

30th September 2020

2.1 Before Anthony Seculer, Deputy Traffic Commissioner

3. Background

The operators hold a Restricted Operator’s Licence to operate one vehicle from KM Environmental Services Ltd., Holywell Road, St. Asaph, LL17 0DS.

On 26th November 2019, the Office of the Traffic Commissioner,(“OTC”), received an application to vary the licence by adding an operating centre at Old Barn, Gellifor, Ruthin, LL15 1SF, the residential address of the operators.

This application attracted representations from 3 local residents which were deemed valid by the OTC, and the case was set down for Public Inquiry.

The Public Inquiry was convened as soon after the lifting of Covid 19 restrictions as practicably possible, the call-up letter being issued on 26th August 2020.

4. The Public Inquiry

At the Public Inquiry, the two partners, Gareth Fenlli Clarke and Lee John Clarke attended, represented by counsel, Ms Maria Masselis

For the representors, Mr Eryl Evans attended.

DVSA Traffic Examiner, Nia Lloyd Daniel, attended to answer to the report of her colleague, T.E. Sarah O’Brien.

Representors, Colonel John Williams and Mr David Williams, were unable to attend owing to the Covid 19 virus. Their written representations, including a letter from Colonel Wiliams dated 22nd September, were taken into consideration. They raised many of the same objections as Mr Evans who lives closest to the proposed operating centre. Mr Evans helped to present the evidence from the three representors in a clear, coherent and reasoned manner.

At the outset of the Inquiry I indicated that I had considered all relevant documents in the brief and had visited the vicinity of the operating centre. I heard evidence from Gareth Clarke on behalf of the operators and from Eryl Evans on behalf of the representors.

5. Evidence

The representations against grant of the application were: 1) Environmental

• Proximity (500m) to designated Area of Outstanding Natural Beauty – Vale of Clwyd;

• Noise, fumes, vibrations and light pollution from LGVs;

• Impact of 24 hour movements;

• Unsuitability of narrow access road, the last 50 metres of which is unadopted, privately maintained and bordered by a steep ditch;

• The road is also a bridal path and used by walkers;

• Potential damage to road surface, retaining walls and hedges;

• Movement of effluent and human waste to and from proposed site;

2) Availability

• The unadopted part of the access road which separated parts of the operators’ and Mr Evans’ properties provided no rights of access to LGVs. A letter from North Wales Police in 2000 referred to the potential for offences under the Road Traffic Act if a motor vehicle was driven on a footpath or bridleway without the land-owner’s permission.

3) Other Grounds

• Safety would be jeopardised along the narrow lane and the proximity of LGVs to the neighbouring properties;

• Choke points would be created at the limited passing points.

• The operators produced a file of documents in support of the application including photographs of LGVs considerably larger than the operators’ 12 tonne vehicle using the access road. These included the Local Council’s 22 tonne refuse lorry which attended weekly and other larger HGVs delivering to the representor Mr Evans.

• Documents relating to the grant of planning permission in 2005 for the erection of a dormer bungalow at the operators’ address and documents in support of a “change in use” application by the operators in 2019 were also included. It is noted that the representations regarding the availability of the access road were raised before the Planning Authority in 2004-5. The Authority granted planning permission stating that ownership of the access road was subject to competing claims which were outwith the Authority’s jurisdiction. It is also noted that the 2019 planning permission referred to a “right of way” to the operators’ premises.

6. Considerations and Findings

Under the Act, a proposed operating centre must be “available” to the applicant, which includes the need for a right of way over the point of access.

In addition, the proposed site must be “suitable” in terms of road safety. The Senior Traffic Commissioner’s Statutory Document No. 4 sets out the relevant case law which clarifies that it is for a Highways Authority to decide whether a public highway is suitable and/or safe for any particular use and the traffic commissioner’s jurisdiction is limited to consideration of access safety at the point the authorised vehicles first join the highway.

In the face of environmental representations, a Traffic Commissioner must determine whether the use of the proposed site as an operating centre for the number and type of vehicles intended by the applicant will have such an adverse effect on the representor’s use or enjoyment of their land as to render the proposed site “unsuitable”.

Dealing firstly with the availability of the operating centre, I am not able to find on the representors’ evidence that the operators have “no right of access” over the access road to the operating centre. The operators have clearly exercised a right of access in respect of their private vehicles and smaller business vehicles over many years and the uncontested evidence from all parties is that the maintenance of the part of the road adjoining the operators’ and the representor, Mr Evans’ properties, has been jointly undertaken. Mr Gareth Clarke has given a verbal commitment at the Inquiry to continue to contribute to the upkeep of the lane but it is not appropriate for this to be an enforceable undertaking on an operator’s licence.

I note that the Planning Authority referred to a “right of way” in 2019 and that despite the Police reservations in 2000 and the Authority’s caveat regarding the 2005 planning permission, no enforcement action or litigation to control rights of access appears to have been taken.

As to suitability on road safety and other grounds, I have regard to the Traffic Examiner’s environmental report which confirms that the site is suitable for the parking and access and egress of goods vehicles. TE O’Brien notes the narrowness of the access road and the potential for the road surface and edging to deteriorate. She recommends a limit on the size of authorised vehicles of 12 tonnes in accordance with the operators’ intended use.

In considering the suitability of the proposed operating centre on other than environmental grounds I also have regard to the fact that the representor, Mr Evans’ father, held an operator’s licence authorising 3 vehicles at Bryn Clwyd, Mr Evans’ address, from 1991 to 2006. Mr Clarke’s undisputed evidence was that Mr Evans Snr operated a goods vehicle larger than the intended 12 tonne vehicle from that address along the access road for many years without difficulty.

Finally I note that refuse vehicle and other larger HGVs clearly use the lane for the purposes of access to the operators’ and Mr Evans’ properties. The total distance along the access road Hwylfalwyn is 188 metres and there is a passing point before the 48 metres of unadopted road.

Taking the above matters into consideration, I find the proposed operating centre suitable on other than environmental grounds for the single vehicle of the specified size.The operators stated that they would envisage no more than 3 movements of the authorised vehicle per day in and out of the operating centre. I do not consider that this degree of use would have a significant adverse effect on the use of the access road by the 12 residential properties and their visitors and I note that representations have only come from 3 of the 12 owners.

As to the environmental impact of the proposed operating centre, I have no concerns over the suitability of the site for the parking and turning of the 12 tonne vehicle. Having viewed the vicinity and seen the representors’ residences there is sufficient distance and screening between them and the operators’ intended parking space for any noise, visual or fumes intrusion to be minimal. Mr Evans, in his written and oral evidence, and Mr David Williams and Colonel John Williams, in their written representations, have concerns about the environmental impact along the access road. I have no doubts that those concerns are genuine and deeply felt and I commend Mr Evans for the reasonable manner in which he articulated those concerns at the Public Inquiry. Nevertheless, having regard again to the fact that this is a single 12 tonne vehicle making a limited number of journeys during daytime hours on Monday-Friday, I do not consider the degree of interference with the representors’ enjoyment of their properties to be sufficient to make the proposed operating centre unsuitable, particularly as conditions are added to the Licence to minimize any adverse effects on environmental conditions.

The application to add the address of Old Barn, Gellifor, Ruthin, LL15 1SF is granted.

The following conditions are added to the licence under section 23 of the Act:

1) The maximum size of authorised vehicle shall be 12 tonnes;

2) Movements of the authorised vehicle shall be between 7.00 and 18.00, Monday-Fridays, excluding Bank Holidays, save for essential pre-booked maintenance and repairs;

3) There shall be no more than 4 movements into, and out, of the operating centre per day.

Anthony Seculer,

Deputy Traffic Commissioner,

6th October 2020