Decision

Decision for J&J Freight

Published 30 June 2021

0.1 IN THE SOUTH-EASTERN & METROPOLITAN TRAFFIC AREAS

1. J & J FREIGHT SERVICES LIMITED OK2016937

2. JOSPEH WILLIAM BEACH – FORMER TRANSPORT MANAGER

3. JOSEPH TAYLOR – PROPOSED TRANSPORT MANAGER

3.1 GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995

4. TRAFFIC COMMISSIONER’S WRITTEN DECISION

5. Background

The full history is set out adequately in the Public Inquiry bundle case summary. In summary, since the licence was granted in December 2018 numerous infringements of drivers hours, tachographs and working time directive have been found during roadside encounters and an investigation. The roadside encounters lead to numerous immediate prohibitions, including two which were ‘S’ marked. The Operator also nominated a new operating centre which received an objection and representations and the Operator appeared to have moved there prematurely. Accordingly, I determined that the Operator and former Transport Manager should be called to Public Inquiry. I confirmed that the application for the new operating centre and to add Mr Joseph Taylor as the new Transport Manager would be considered at the Public Inquiry.

6. Hearing

The Public Inquiry was originally listed for 11 February 2021 but had to be adjourned due to the third national lockdown linked to the COVID19 pandemic. The Public Inquiry therefore convened on 15 April 2021 at the Holiday Inn, Reading South. The Director and proposed Transport Manager Mr Joseph Taylor (‘Mr Taylor’) attended represented by Ms Astra Emir of Counsel. I heard oral evidence from Mr Taylor who expanded upon his written statement lodged in advance. The Operator’s new Transport Consultant Mr Andrew Miles also attended as a witness. Mr Syan Ventom of Counsel represented the interests of Runnymede Borough Council. DVSA Traffic Examiner Paul Clarke attended and gave oral evidence. The former Transport Manager Mr Joseph Beach did not attend. At the conclusion of the hearing, I permitted Counsel a further seven days to submit written closing submissions.

Listed immediately before the Public Inquiry were two co-joined Driver Conduct Hearings arising from the same DVSA investigation. The hearings were for Mr Milorad Petrovic and Mr Dariusz Jozef Zalewski. The decision in relation to those cases are appended to this decision marked “Annex A”.

7. Documents and Evidence

Prior to making this decision I have considered the following: -

i. Public Inquiry brief for the hearing on 15 April 2021.

ii. Driver Conduct brief x 2.

iii. Traffic Examiner’s report on data submitted for analysis to assist the Public Inquiry for the period 1 January 2021 to 31 March 2021.

iv. Witness statement of Joseph Taylor received on 30 March 2021.

v. Transport consultant report (AS Miles) received 30 March 2021.

vi. Operator’s hearing bundle received on 1 April 2021.

vii. Operator’s maintenance documentation for the Public Inquiry received over four emails dated 6 April 2021.

viii. E mail with additional documents from the Operator’s legal representative, dated 9 April 2021.

ix. Closing submissions from Counsel Astra Emir received on 22 April 2021.

x. Supplemental Witness Statement of Joseph Taylor in relation to impact of regulatory action, transport manager issues and role of Jason Taylor received on 22 April 2021.

xi. South Bucks District Council and another V Porter(FC) (2004) UKHL33, English v Emery Reimbold & Strick Ltd [2002 EWCA Civ 605 and Bradley Fold Travel Limited & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695 in relation to written decisions generally.

xii. Upper Tribunal Decisions and other guidance I consider relevant to this determination as listed elsewhere in this Decision.

xiii. The Senior Traffic Commissioner’s Statutory Guidance and Statutory Directions (‘SGSD’) current versions.

8. The Issues

Mr Taylor denies that he is ‘fronting’ for his father, Mr Jason Taylor. Mr Taylor confirms that the Operator will accept the previous restrictions on Bellbourne Nursery if I am minded granting it as an operating centre.

Mr Taylor does not dispute the factual events and failings set out in the Public Inquiry bundle and the DVSA oral evidence. The Operator also did not challenge what is said in relation to the maintenance documentation lodged in advance.

Mr Taylor seeks to be the nominated transport manager. If that application fails, as a matter of law there is no further period of grace available.

9. Approach

From March 2020 Operators have been challenged, along with the rest of the nation, on coping with the unique circumstances of Covid-19. On 17 March 2020, a full week before the national lockdown the Senior Traffic Commissioner issued an emergency SGSD setting out detailed legal and practical advice for Commissioners, Operators, Transport Managers and those who support them. It includes the following:

What is physically possible may change during the course of the outbreak, but the Office of the Traffic Commissioner has issued additional guidance to operators throughout the course of the restrictions to date: https://www.gov.uk/government/publications/advice-heavy-goods-and-public-service-vehicle-operators-covid-19 The Senior Traffic Commissioners directs that this must now form part of the decision-making process. In considering the positive and negative aspects of an operator’s approach during the lockdown and subsequent restrictions, traffic commissioners may also have regard to:

• the employment of effective management based on sound risk analysis for instance in the management of maintenance;

• a risk-based approach to the testing of vehicles in prioritising the inspection of older and/or historically problematic vehicles in the transition back to business as usual…

These should be supported by evidence.

There is clear and consistent case law from the Upper Tribunal that a Traffic Commissioner is entitled to treat the conduct of a sole director effectively as the conduct of the Limited Company and good repute or fitness is determined accordingly. Such an approach has received approval from the appellate tribunal on several occasions, such as 2013/008 Vision Travel International Limited and T2013/61 Alan Michael Knight. As well as the operator licensing obligations, a company director must exercise his or her statutory duties of demonstrating independent judgement, skill, care and diligence, as per sections 173 and 174 Companies Act 2006).

‘Fronting’ was helpfully defined in the case of 2012/071 Silvertree Transport Limited, where the Upper Tribunal stated: ‘.. ‘fronting’ occurs when appearances suggest that a vehicle, (or fleet), is being operated by the holder of an operator’s licence when the reality is that it is being operated by an entity, (i.e. an individual, partnership or company), which does not hold an operator’s licence and the manner in which the vehicle is being operated requires, if the operation is to be lawful, that the real operator holds an operator’s licence.

I have not set out all the evidence as it is a matter of record in the papers and by way of transcript. I have referred to material evidence relevant to my findings.

10. Consideration and findings

From observing and listening to Mr Taylor and analysing his evidence, I do not find him a credible or compelling witness. The following chronology leading up to the hearing is relevant to my findings and conclusions: -

13/07/2018	OK1106426 Steves Logistics Ltd call-in letter issued to correspondence/operating centre address Bellbourne Nursery, Hurst Lane, Egham TW20 8QJ.
13/09/2018	OK1106426 Public Inquiry.
21/09/2018	J & J Freight incorporated. Directors Albert & Joseph Taylor.
25/10/2018	J & J Freight lodge application for Standard International Licence requesting 10 vehicles and 8 trailers. No apparent connection through personnel or addresses to Steves Logistics Ltd.
31/10/2018	Steves Logistics Limited Licence revocation and 2-year disqualification of Jason David Taylor commences.
13/12/2018	Licence granted under delegation as no apparent history with Joseph Taylor and Albert Taylor as directors and Joseph Beach as Transport Manager. Operating centre is Adelaide Works, Long Lane, Stanwell, TW19 7AR.
21/02/2019	Joseph Taylor attends DVSA New Operator Seminar.
18/03/2019	Steves Logistics Ltd enters liquidation.
25/03/2019	Albert Taylor resigns as Director (source: Companies House) but this is not notified to my office for a further ten months*.
March/April 2019	J & J Freight start using Bellbourne Nursery as an operating centre for at least some vehicles and trailers.
30/06/2019	Last day for Operator to lodge documentation required under the finance undertaking accepted on grant. Only loan documents are received, and full bank statements are not received until July 2019.
21/08/2019	Application submitted using online self-service by Joseph Taylor to add a new operating centre: Bellbourne Nursery, Hurst Lane, Egham, TW20 8QJ.
29/10/2019	Above application subsequently refused as the advert did not circulate in the vicinity of the operating centre.
14/10/2019 – 04/11/2019	Vehicle GO04GDT in use when not specified on the Operator’s Licence in breach of Section 5(6) of the 1995 Act. The vehicle was previously specified on the licence between 10/01/2019 and 03/09/2019. The vehicle is removed and added by Joseph Taylor using VOL self-service, not his grandfather as stated in evidence. Joseph Beach has not logged in to VOL since the Licence was granted in 2018 (source: VOL user access record). There is no margin on the Licence and therefore using more vehicles than authorised. Analogue charts centrefield indicate a base in Egham not Stanwell.
05/11/2019	Application submitted using online self-service by Joseph Taylor for new operating centre at Unit 1 Bellbourne Nursery, Hurst Lane, Egham, TW20 8QJ. No interim requested. This is the date Joseph Taylor told the Vehicle Examiner on 5/10/20 that he received notice to quit Adelaide Works (see page 144 Public Inquiry bundle). Letter from site owner in Operator bundle.
15/11/2019	Letter Licencing Team to J & J Freight (page 65 of PI bundle), including: You are advised that you must continue to operate within the existing terms and conditions of your licence until you are granted authority to do otherwise. You can apply for an interim Direction to operate in line with your variation application, pending a decision on your full application, grant of which is discretionary.
27/11/2019	Operator response. No mention of intention to leave Adelaide Works or the time constraints on availability of that base. No interim request.
23/12/2019	Letter (also by e mail) Licencing Team to J & J Freight (page 84 of PI bundle), including: I note that the additional documentation listed in the attached annex (marked ‘x’) remains outstanding. This letter is intended as a final attempt to resolve these issues by correspondence and you must now respond in full by no later than 06/01/2020. If on that date the application remains incomplete, it will be refused.…… if you are applying to vary an existing licence, unless an interim direction has been issued in respect of your application, I must re-iterate that you must continue to operate within the existing terms and conditions under which your licence is currently held.
23/12/2019	Operator response but no mention of leaving Adelaide Works or the time constraints on availability of that base. No interim request.
24/12/2019	Last date to vacate Adelaide Works under notice to quit. Adelaide Works is not removed from the Operator Licence (using online self-service or at all). No interim requested for Bellbourne Nursery.
15/01/2020	Runnymede Borough Council (“RBC”) confirms as part of its objection to the operating centre that it does not believe conditions would be sufficient to make the site suitable as a previous “linked” operator had breached those conditions.
15/01/2020	Operator response (page 91 of the PI bundle). No interim request for Bellbourne Nursery. No mention is made of Adelaide Works.
15/01/2020	Traffic Examiner contacts Mr Taylor to confirm compliance visit the following week, including requirement for Transport Manager Joseph Beach to be present. Mr Taylor subsequently contacts Transport Consultant Paul Shea for assistance.
17/01/2020	Operator e mail to Licencing Team (page 95 of the PI bundle). No interim request for Bellbourne Nursery. No mention is made of Adelaide Works.
20/01/2020	Traffic Examiner announced investigation (follow up of a drink/drug allegation against one of its drivers). Transport Manager Joseph Beach is not present. There were no systems in relation to drivers hours, tachographs and working time directive prior to the visit. Long list of infringements and recommendations. Outcome ‘Unsatisfactory – report to OTC’. No mention is made to the Traffic Examiner about Adelaide Works.
29/01/2020	Albert Taylor is removed as a Director on VOL using online self-service by Joseph Taylor.* Adelaide Works is not removed. No interim request for Bellbourne Nursery.
04/02/2020	Licencing Team advise that the TC is proposing to grant operating centre with previous restrictions, but RBC given an opportunity to respond first. No final decision until after deadline.
11/02/2020	Joseph Beach is removed as Transport Manager on VOL using online self-service by Joseph Taylor.*
11/02/2020	Sean Gleeson is nominated in his place using online self-service by Joseph Taylor.
05/03/2020	Operating Centre application re-published in As & Ds with new proposed Transport Manager Sean Gleeson. Operator notified the same day (page 114 of the PI bundle).
27/04/2020	Joseph Taylor Transport Manager CPC certificate issued (passed March exams).
16/06/2020	Joseph Taylor nominated as Transport Manager on this Licence. The application to add Sean Gleeson is not notified as withdrawn by Mr Taylor. Adelaide Works is not removed. No interim request for Bellbourne Nursery.
23/06/2020	One of the Operator’s trailers receives an ‘S’ marked immediate prohibition at a roadside encounter.
20/06/2020	Sean Gleeson applies to be an internal Transport Manager on another Licence indicating no outstanding applications or other employment. Not referred over to the relevant Licensing Team for J & J Freight and VOL record not updated by Joseph Taylor or Leeds. [source VOL – checked after Operator PI bundle included an e mail from Mr Gleason referring to other application].
13/07/2020	Auditing of drivers’ walkaround checks ceases (see page 147 of Public Inquiry bundle).
28/07/2020	One of the Operator’s vehicles receives an ‘S’ marked immediate prohibition at a roadside encounter.
04/09/2020	Licencing Team ask the Operator at my direction if still operating from Adelaide Works (page 118 of the PI bundle).
08/09/2020	Joseph Taylor e mail to Licensing Team (page 117 of the PI bundle): I must now confirm that we have moved out of our authorised operating centre….I had never intended to mislead or operate from an unauthorised site… (my emphasis)
05/10/2020	Vehicle Examiner maintenance investigation in person by appointment. Three vehicles and one trailer are inspected, and all are clear of defects. Joseph Taylor tells the Vehicle Examiner that he is awaiting a decision for an interim (or full) licence for the new operating centre (see page 154 of the Public Inquiry bundle). No interim has been requested for Bellbourne Nursery.
05/10/2020	Compliance Team notify Operator of my decision to call it to Public Inquiry, including operating centre issues, DVSA Traffic Examiner adverse report and application to add Sean Gleeson as transport manager. Hearing date to be notified. I make formal finding under section 27 of the 1995 Act – no longer professionally competent – and grant a period of grace until the hearing.
16/10/2020	Roadside encounter where drivers hours and tachograph offences are found. This includes 5 occasions of the vehicle being driven with no digital card inserted over the previous 28 days.
05/11/2020	Roadside encounter. Vehicle KX14LTA in use with the vehicle MOT expired by 5 days. The vehicle is also issued with an insecure load prohibition.
12/11/2020	Roadside encounter. Vehicle RJ66KLM issued with an immediate roadworthiness prohibition and tachograph/drivers hours offences detected.
19/11/2020	Joseph Taylor e mail to Compliance Team on transport consultant’s advice. Sean Gleeson only ‘interim’ transport manager until Mr Taylor passed exam. Since passing the exam ‘I am the transport manager for the company’.
18/12/2020	PI call in letter issued to include application to add Joseph Taylor as Transport Manager.
11/02/2021	PI postponed due to Covid 19 restrictions – external venue with sufficient capacity is no longer available.

At paragraph 12 of his witness statement, Mr Taylor states:

“Following the DVSA inspection in January 2020, I realised that drastic action was needed to bring our procedures, systems, planning and compliance generally up to required standards. As explained, my grandfather was removed as transport manager in January 2020. I then booked both a course of study for myself for the transport manager CPC examination and to sit the examination itself. I sat and passed the examination in March 2020, my certificates being issued on 27 April 2020”.

Mr Taylor goes on to explain assistance received from a transport consultant from January 2020, including an introduction to Sean Gleeson. This is supported by a letter from his then Consultant Paul Shea. Mr Taylor suggests that the application was replaced by his own, but the necessary online steps were not taken to action this. From what follows it can be seen that there was some improvement, but it has not met the basic requirements of the Licence conditions and undertakings, or improved transparency.

10.1 Drivers Hours, Tachographs and Working Time Directive.

DVSA commenced an investigation on 15 January 2020 following information that one of the company’s drivers had been stopped for alleged drink/drug driving. A visit was made to the operator on 20 January 2020 and the result was unsatisfactory for the following reasons: -

• No evidence of downloading vehicle units or driver cards

• No evidence of any analysis of drivers hours being carried out.

• No system in place to ensure agency drivers hold the correct driving entitlement or have sufficient hours to allow them to drive before being up on duty.

• Drivers hours infringements found;-

• Exceeding 4.5 hours driving without required breaks.

• Insufficient rest within 24 hour periods.

• No analysis of Working Time Directive.

An additional report from the traffic examiner on 15 December 2020 (page 302+ in the PI bundle) noted two subsequent encounters:

16 October 2020. Vehicle KX14 LTA, the driver, Dean Stroud, confirmed that he was working for J & J Freight Services Ltd. It was found that the vehicle had been driven without a driver card inserted on 5 occasions in the previous 28 days. A verbal warning was issued to the driver for an offence of failing to take sufficient daily rest and a mode switch error. 5 November 2020. Vehicle KX14 LTA was stopped, the driver was Dean Stroud. It was found that the MOT had expired on 31 October 2020. Contact was made with the director, Joseph Taylor, who informed the traffic examiner that he had believe he had an extension until November 2020. The MOT was passed on 9 November 2020.

The detailed history is set out more fully in the Traffic Examiner’s report of June 2020, but as identified above there were no meaningful systems in place, and a follow up report dated 15 December 2020 where improvements were noted. However, there was still no formal arrangement for the engagement of agency drivers even though that had been a feature of the original investigation and noting the use of the vehicle without an MOT.

The call in letter therefore required more recent data to be provided to DVSA so that I could assess drivers hours, tachograph and Working Time Directive compliance as at the hearing. The Traffic Examiner confirmed that the Operator failed without explanation to provide the vehicle data for tractor unit KX14LTA (specified on 29/5/20) and 18t rigid PN61PSO (specified on 10/1/19). For one driver (Mr Jaruzel) there was a ‘data file’ sent but there was no data contained within it. The Traffic Examiner accepted that there may have been a technical issue with that driver file. Whilst most of the offences would be considered “minor” some were not, and the Traffic Examiner specifically addressed those in oral evidence:

• Driver McGovern has two offences of insufficient rest (29 minutes and 21 minutes short with no manual entry). The infringement report is signed but no reasons for the infringements or lesson learnt are recorded.

• Driver Sherwood has seven infringements within the relevant period. Whilst the infringement report is signed by both the operator and driver, no reasons were given for the offences having occurred or lessons learnt.

• Dean Stroud, who featured in the original investigation, had taken a 17 minute too short daily rest period break.

Mr Taylor’s explanation for the missing vehicle data is that he misread the call-in letter. It is difficult to see how ….data for vehicles and drivers from 01/11/21 to 12/01/21 and any infringement/analysis report…’ can be misunderstood. There is no reference as to whether the vehicles had since been removed from the Licence or the drivers remained employed. It is likely to have been because Mr Taylor’s focus was elsewhere, as per para 22(iii) below. The Traffic Examiner concluded that, even with missing information, it is apparent that training was still needed for both the drivers and the Operator, particularly around reduced rest breaks. The areas for improvement after a wider assessment of current records are articulated in the report of A S Miles.

10.2 Maintenance

In terms of safety, the ‘drastic action’, enhanced education and external assistance referred to in paragraph 16 above, had not found their way to the systems to ensure vehicles are roadworthy by October 2020. The Vehicle Examiner fleet inspection was clear but that might be expected on an announced visit. The paper audit trail demonstrated basic and safety critical system flaws in management, including:

• PMI intervals exceeded

• Several PMIs did not have Roadworthiness declaration signed off

• Several PMIs noted defects which were not marked as rectified.

• Measured brake testing not carried out on all PMIs for vehicles and trailers, as per the Guide to Maintaining Roadworthiness.

• Trailer with ‘brake chamber leaking badly’ does not have defect endorsed as repaired and Roadworthiness declaration not signed.

• DDRS not fully completed.

• DDR inadequate as the two ‘S’ marked prohibitions and several other prohibitions indicate [auditing stopped 13/07/20].

The Operator was required to produce maintenance documentation for two vehicles and two trailers together with ‘defect only’ driver walk round sheets since from October 2020 to date. Originally the Vehicle Examiner was to receive these 14 days before the PI but was not available for the new April date. As the Vehicle Examiner’s original evidence is not disputed, it was agreed with the parties that I would look at the same documentation to assess what improvements were made by the Public Inquiry. The documentation was due by no later than 31 March 2021. This should have been straightforward as some of it was originally due in February 2021. Regrettably, my ability to do undertake a full assessment was impeded because:

(i) the PMI forms for the vehicles and trailers were not lodged until after 19.00 hrs on 1 April 2021 (after Easter break starts), across 4 e mails with 52 separate attachments simply referred to as ‘scan’ (no description);

(ii) the Operator’s PMI scanning cut off and/or covered relevant parts of some forms; and

(iii) the forward planner was not received until 19.30 on 1 April 2021 with the covering e mail stating ‘Sorry for the slightly late email containing this information but work has been very busy over the Easter period as im sure you can appreciate’.

It is discouraging that Mr Taylor put commercial needs ahead of assisting the tribunal and communicating effectively with my office.

What was obvious to me (and should have been immediately obvious to Mr Taylor, even without external help) is that, whilst vehicles are now having measured brake testing (decelerometer), which is an improvement on 5 October 2020, the brake testing is unladen. The Guide to Maintaining Roadworthiness states that vehicles and trailers should be subject to laden measured brake testing in the same ISO week as the PMI. Further, as a minimum, vehicles and trailers should have 4 laden roller brake tests per annum, including MOT plus a form of measured brake test at the other PMIs. There is no evidence of roller brake testing save at MOT in the records sent to me. Further the MOT brake test for RJ66KLL was a scrape pass and not at a level to suggest the performance would stay above the MOT standard until the next PMI.

It is accepted that laden brake testing can be a challenge for tri axle semi-trailers, but it is not impossible. The challenges are practical in terms of time rather than technical. This was meant to be assisted by the 2018 Guidance amendment to permit the testing in the same ISO week. In any event, this Operator’s records show no brake testing at all for trailers. The trailer PMIs do not have unladen roller brake tests, or even a decelorometer or road test with brake temperatures - see the safety inspections for C348139 (T8) and C272114 (T24). Every single form was completely blank under ‘Part 3: Road/Brake Test Report’. It cannot be missed as the section is one third of an A4 sheet. This is a deteriorating position than 5 October 2020 (see page 165 of the PI bundle).

It is not possible to see all of Part 1 (Inspection) and Part 2 (Rectification) on many of the vehicle PMI sheets because service brake decelerometer print outs were stapled over these parts when scanned. From those properly copied and the action taken to rectify faults section from those badly scanned, there are driver reportable items by reference to cracked mirrors, fitting new bulbs, blown fuses, lamp units replaced and wiring repairs across BX61BVP and RJ66KLL. Whilst there are driver defect sheets which have some of these items on, they do not correspond to the PMIs (by way of example PMIs RJ66KLL on 18/3/21, 20/2/21 and 21/1/21). I received copies of a total of 22 defect sheets (over the past 6 months), 6 of which have defects noted and a signature in the ‘defect assessment and rectification’ section but no indication in the latter what was done and when to rectify the defects. There are references to tyres being changed but not always which and never when. Inadequate driver defect reporting was also an issue on 5 October 2020. Whilst at least some defects are being picked up, the driver training referred to by Mr Taylor to date appears inadequate, as is Mr Taylor’s systems for noting defect assessment and rectification.

There are numerous driver reportable items on trailer PMIs - T24 marker lamps inoperative in March 2021; T8 lamps and markers inoperative x 3 and a curtain strap missing on 22 March 2021 and a marker inoperative on 26 January 2021. Whilst corresponding Driver Defect Sheets were not requested for trailers, the audit trail would be onerous. Trailers do not have separate defect sheets. The trailer fleet number is sometimes endorsed on the vehicle driver defect sheets and sometimes it is missing. There are no trailer fleet identifications on the defect sheets for RJ66KLL on 7 occasions.

The MIVR form suggests that measured brake testing was not discussed in any detail at the maintenance investigation, with a focus on the driver defect reporting and PMI rectification and roadworthiness sign off. However, effective brake performance testing is covered comprehensively in the Guide to Maintaining Roadworthiness. It is clear from the system produced at the Public Inquiry, that on a risk-based approach, the Operator could not be satisfied that the vehicle and vehicle/trailer combination brake performance was being properly tested.

On the positive side, PMI intervals are on time (save for T24 – extended by 10 days in December 2020), defects are signed off as rectified and the certificates of roadworthiness are signed off. At least some defects are being picked up on daily walk round checks, albeit the driver training referred to by Mr Taylor to date appears inadequate as is Mr Taylor’s systems for noting defect assessment and rectification

However, the A S Miles audit of 11 March 2021 also includes worrying deficiencies, by way of example vehicles and trailers put back in service before Mr Taylor saw the PMIs, his lack of knowledge of the wheel torque policy and no driver eyesight checks. BX61BVP was specified on this Licence from 17/2/19 and before that was specified on Steves Logistics. The Operator’s documents show that BX61BVP had its first LOLER tail-lift 6 monthly thorough examination on 20 March 2021 (no previous inspections recorded), the issue having been raised by Mr Miles the week before. The forward planner e mailed on the evening of 1 April 2021 must still have had wet ink as it includes LOLER examinations. It is also inexplicable that there remains no drink/drugs policy and the absence of risk assessments generally, even though a drink/drug incident with a driver led to the January 2020 investigation.

11. Findings

11.1 The Operating Centre – Unauthorised Use of Bellbourne Nursery

Paragraph 5 of Mr Taylor’s witness statement includes:

With regard to the original operating centre at Adelaide Works, Long Lane, Stanwell, on 5 November 2019 we received notice……. An application seeking authority for the proposed new operating centre at Bellbourne Nursery, Hurst Lane, Egham was then immediately filed. There had been no prior warning that notice was to be given. However, there was almost 3 months before we had to leave the original centre. I understood that, without complications, this would have been more than enough time for the application to be determined. Unfortunately, that was not the case.

The reference to ‘…without complications..’. is of itself without merit. Mr Taylor confirmed in oral evidence that he was aware of the Steves Logistics revocation and Jason Taylor’s disqualification and the reasons for it – this included the complaints about Bellbourne Nurseries and the sustained breach of the hours restrictions of a period of years. The sensitivities around Bellbourne Nurseries, the Council and residents is one of the reasons given by Mr Taylor for not applying for permission to use the site in 2018.

At paragraph 6, Mr Taylor states:

The notice period was expiring and the company had no alternative but to move. The application to authorise the proposed new centre could not then be resolved due to the objections and subsequent correspondence and negotiations, I had no option but to move the business to the proposed new operating centre before the application could be determined. I regret having had to take this step but, if the business was to continue, I had no practical alternative. Moving to Bellbourne Nursery was the only realistic option open to me.

This suggestion is entirely self-serving. J & J Freight was on a formal notice to quit and an interim or alternative site was the only way to regularise the position. There is copious advice and guidance in the public domain of which the Operator has deemed knowledge (as per the Upper Tribunal in 2012/030 MGM Haulage & Recycling Limited), including the STC SGSD No. 4 Operating Centres and Stable Establishment, which would be found on any Google search even remotely on point. Mr Taylor also had the contact details for the new application caseworker in Leeds. The chronology contradicts the transparency claimed in Counsel’s written closing. Mr Taylor had numerous opportunities in correspondence with Leeds and whilst making other VOL changes online to be transparent.

Mr Taylor’s language on 8 September 2020 is telling: I must now confirm that we have moved out of our authorised operating centre….I had never intended to mislead or operate from an unauthorised site… Use of the words ‘I must now confirm…’ is completely at odds with a stated intention not to mislead. Further, it was only after two pieces of information were aired early in the hearing in April 2021 that Mr Taylor subsequently admitted that J & J Freight had been using Bellbourne Nursery as an operating centre for 4 vehicles since March/April 2019. Firstly, Driver Zalewski confirmed he joined J & J Freight in the summer of 2019 and he had always been based form Egham not Adelaide Works. Secondly, I noted during the Traffic Examiner’s evidence that the analogue chart centre-fields demonstrated at least one vehicle based at Egham before the November 2019 application, Mr Taylor explained that the almost instant unauthorised use of Bellbourne Nursery was because Adelaide Works could not safely accommodate all the vehicles and trailers. Three vehicles were away tramping Monday to Friday and the other vehicle was there full-time. The unauthorised use started shortly after the Licence was granted, within weeks of the New Operator Seminar and absolutely nothing to do with the notice to quit or processing issues.

In my judgement, it is more likely that Mr Taylor did not tell the Traffic Examiner or Leeds of the unlawful move to Bellbourne Nursery or remove Adelaide Works and apply for an interim because if refused (which was likely) the only alternative would be to pause operating or find a less contentious (and less commercially attractive) temporary site. It only took a click on one button on VOL but on many occasions, Mr Taylor chose not to do it. There is no excuse for putting commercial need ahead of compliance. Unauthorised use of an Operating Centre is a breach of a Licence Condition and a summary offence (section 7 of the 1995 Act). There is no excuse for misleading DVSA. There is no excuse for misleading the Licensing Team, and in doing so Mr Taylor was misleading me as the team work to support me. Mr Taylor’s witness statement lodged on 30 March 2021 was misleading. This conduct directly impacts on the Operator’s good repute and Mr Taylor’s good repute as the proposed Transport Manager.

Mr Taylor claims that until the DVSA investigation in January 2020, he did not understand his own obligations as the Director or that his grandfather was not properly fulfilling the Transport Manager role. At that point he sought the assistance of a Transport Consultant, removed his grandfather as Transport Manager and booked himself on the Transport Manager CPC course. At paragraph 30 of his witness statement Mr Taylor includes: “I accept that I should have undergone appropriate operator licence training and also transport manager training before I took on the onerous role of director of a haulage company….” This is repeated at paragraph 38 of Counsel’s closing.

The explanation is self-serving and lacks authenticity. When an individual signs the operator licence application form, they are confirming that the legal entity has the relevant knowledge and ability to meet the conditions and undertakings. The forms were signed by Albert Taylor, but directors have joint and several responsibility for the company and it was for Mr Taylor to understand the commitment, as per the then Transport Tribunal in 2000/041 Hi-Kube:

That course of action is certainly one that an ordinary prudent individual would take in the circumstances. Failing to do so was in our view reckless and goes beyond mere inadvertence…

The New Operator Seminar is designed to educate and assist those new to the regime and provide an early check list to endure that the systems are in place and working. The seminar covers the role and powers of the Traffic Commissioners, licensing obligations such as the conditions/undertakings, including advice and guidance on vehicle and driver management (including drivers’ hours, tachographs, Working Time Directive and effective maintenance). Each seminar is presented by both a Vehicle Examiner and Traffic Examiner. The seminar is and always has been clear that there must be proper oversight of all aspects and provides useful links, including the Guide to Maintaining Roadworthiness. The responsibility is with the directors/partners/owners to check compliance. The Transport Manager is one element in ensuring an effective system, but is not the system itself. The position is succinctly set out by the Upper Tribunal in 2012/025 First Class Freight:

While it is true that a transport manager must “effectively and continuously” manage the transport activities of the undertaking for which he or she works and is now required to be familiar with a wide range of topics, including the law in relation to operator’s licensing, that does not mean that the person or persons who control an entity which operates heavy goods or public service vehicles is or are absolved of responsibility. Such a person must know enough to ensure that someone employed as a transport manager is up to the job and they must also be able to supervise them to ensure that they do a proper job. It is, after all, for the director or directors of a company to set the standards which the employees are required to meet.

Mr Taylor attended the New Operator Seminar at Mitcham on 21 February 2019. Mr Taylor became the sole director the same month. From 21 February 2019, it would have been obvious to Mr Taylor if he had done a cursory check that the Operator’s systems were wholly deficient by what was and was not available to him from then on (as identified by DVSA a year later):

• Missing mileage between the end of one analogue chart and the start of another.

• No driver infringement reports.

• No driver/vehicle data analysis.

• No working time directive analysis.

• No training.

• No driver licence or DCPC checks for agency drivers.

• No transport manager feedback or audit trail.

• Out of date wall planner [source: Paul Shea letter dated 10/2/21 (page 19 Operator PI bundle).

• PMI intervals extended up to 13 weeks (Operator suggests PMIs done but paperwork not received – no evidence produced).

• No PMI records for RJ66KLM specified on 13/08/2019 and removed on 11/11/2019.

• No PMI records for KX15NYF prior to 19/10/19 but the vehicle was specified on Licence grant (13 December 2018).

There is no good or acceptable reason for the shortcomings identified by the Traffic Examiner findings in January 2020. By way of example, I refer to the direct discrepancy in evidence regarding knowledge of the availability of GN04GDT and the use of more vehicles than authorised (see chronology for 14/10/19 – 4/11/10). The blame was laid at the door of Joseph Beach but Mr Taylor’s claim of being distanced from the practical side of transport operations do not pass scrutiny. It was Mr Taylor who chose to base operations across two sites. It was Mr Taylor who made the VOL changes. The warehousing and storage is at the main business site of Bellbourne Nursey that is where GN04GDT was based and where Mr Taylor spent time (drivers having seen him in the office there).

There is no good or acceptable reason for the shortcomings identified by the Vehicle Examiner findings in October 2020. There is no good or acceptable reason for the ongoing failures to implement effective systems or omit data and documentation specifically required. As can be seen from the DVSA reports, oral evidence, PI maintenance documents and chronology, Mr Taylor’s CPC qualification and the engagement of Mr Shea did not materially assist several areas of compliance, particularly on the discipline and maintenance side. Only one of the driver disciplinary letters is signed for. Jason Taylor interviewed prospective drivers with Mr Taylor. In evidence, the drivers remembered receiving letters and Mr Taylor would discuss hours when put in context by Counsel. However, the overall impression from their evidence was not one of fear for their jobs nor did they perceive Mr Taylor as a ‘Boss’. Mr Zalewski received one verbal and two written warnings, and it is unclear what the dismissal point would have been. After pulling his card Mr Zalewski was told by Jason Taylor not to do it again. There was only a parting of the ways after a disagreement with Jason Taylor about working just before Christmas. It was Jason Taylor that told him not to come back after Christmas as a result.

The operator continued to attract Prohibitions and unsatisfactory roadside encounters even after the January 2020 investigation. Having been granted this Licence in December 2018, J & J Freight has failed to raise systems and standards to an acceptable level even now.

My findings in paragraphs 30 to 33 speak for themselves. The operating centre offence was never regularised by a request for an interim or alternative temporary site, and there was no openness around the unauthorised use of that site with my office between March 2019 and September 2020. Further, DVSA was materially misled during a compliance visit when told that an interim had been requested. Mr Taylor knows and always knew that this was a sensitive site and unauthorised use would invite attention from DVSA and myself. Mr Taylor demonstrated a fluid approach to the truth, even at the hearing.

It is against this background that I am asked to believe Mr Taylor that J & J Freight was/is not a ‘front’ for Mr Jason Taylor and that he is an employee only. Paragraph 4 of Mr Taylor’s witness statement states:

“My father, Jason Taylor, has no involvement or responsibility in or for the management of compliance with operator licence obligations and transport manager responsibilities. His involvement with the company is and has been concerned solely with managing sources of work, maintaining and developing client relationships and also developing new business. Whilst both he and my mother have a 20% shareholding each in the company, as the majority shareholder and sole director, my decision is final on all matters.”

This assertion requires scrutiny not only because of the history but also the oral evidence given by the two drivers, as per paragraph 39 above. Mr Jason Taylor was disqualified from “….holding or obtaining an Operator’s Licence or being involved in any entity or as an individual that hold or obtain such a Licence in Great Britain for a period of 2 years with effect from 23:45hrs on 30 October 2018” (my emphasis). The purpose of the wording was to prevent Mr Jason Taylor’s unhealthy approach to risk impacting HGV operations in Great Britain for a defined period. This approach has been supported by the Upper Tribunal requiring that a traffic commissioner must “ensure that the purpose of an order is not undermined or defeated by a disqualified person becoming involved with the management of another operator’s licence.” This will be even more important where a traffic commissioner is concerned regarding the risk of “fronting”, as in this case. Please see – STC SGSD No.10 Proportionality and the Principles of Decision Making; 2005/457 Leslie John Ings trading as Ings Transport and 2017/071 Sivertree Transport Limited.

In paragraph 19 of her written closing, Counsel sets out a list of justifications and suggests that this is not a ‘front’ for Mr Taylor. However, ‘fronting’, by its very nature suggests a degree of sophistication. There is an obvious reason for why Jason Taylor would not meet DVSA or Consultants or correspond with Leeds: his involvement and history would be picked up immediately. Mr Jason Taylor could not be a majority shareholder on paper, due to the section 28 direction, for two years. The decision to move to mostly pallets and local work could as easily be a joint one. It is not uncommon in the current environment for operators facing driver shortages and challenges in recruiting drivers prepared to be away all week, to move away from ‘tramping’. Mr Taylor originally chose his grandfather to be named as Transport Manager. By doing the CPC himself, Mr Taylor is simply continuing to ‘keep it in the family’ and this could equally have been a joint decision with Jason Taylor. The balance of evidence leads me to a conclusion that this is in part Mr Taylor’s business, but it is a joint enterprise with his father. The 2018 Licence application had no obvious connection to Steves Logistics, particularly as Adelaide Works is over by Heathrow (and a convoluted drive away). If Bellbourne Nursery had been nominated as the operating centre or correspondence address (as per Steves Logistics) the links would have been obvious. The J & J Freight application would have been called to a hearing to determine. Instead, the Licence was granted within 6 weeks of the Steves Logistics revocation and Jason Taylor’s disqualification, undermining my direction.

Jason Taylor was not called as a witness for the operator. I have avoided making formal findings about his level of involvement, but if Jason Taylor applies to return to operator licensing in any guise in the future, then that application must be referred to a TC with a copy of this decision.

12. Determination

There is no evidence that Mr Beach ever exercised continuous and effective management of the transport operations, as identified by DVSA in January 2020 and acknowledged by Mr Taylor at paragraph 3 of his witness statement. Mr Beach has not attended the Public Inquiry. Whilst it is anticipated Mr Beach does not want to be nominated again, it is my responsibility to formally note the safety risk posed by his failure to take responsibility. Accordingly, I have reached the decision set out in paragraph 3 above.

I am satisfied to the civil standard of evidence that I may make adverse findings against the Operator under sections 26(1)(a), (b), (c)(iii), (ca), (f) and (h) of the Goods Vehicle (Licensing of Operators) Act 1995. I have not made a finding on financial standing. There was a shortfall for the authorisation. I have received a loan facility letter and a letter from the finance company confirming the facility remains available. This does not meet the requirements as per STC SGSD No.2 Finance. The funds must be drawn down and placed the Operator’s bank account to meet the criteria. I have not made a formal adverse finding because I would have provided a short period of grace to enable this to happen if the Licence were to continue.

I pose the question, helpfully suggested in 2009/225 Priority Freight: how likely is it that those before me will, in future, operate in compliance with the operator’s licensing regime. I have been provided with a list of untested promises, founded on the audit of the new Transport Consultant A.S Miles, and developed during the hearing during Mr Taylor’s evidence and in the closing submissions. Counsel submits that I can be confident that Mr Taylor can be trusted to “continue his improvement, particularly with Mr Miles by his side. The evidence of Mr Miles shows that Mr Taylor and J&J Freight Services can be an operator with a good future: bear in mind that he is a young man, still 22, not quite 23 still growing in confidence, and perhaps has not yet reached his potential”. It may equally be the case that Mr Taylor has not reached his potential for impropriety and a fluid approach to transparency, safety, and compliance. Mr Taylor has demonstrated that he is not naïve; the evidence shows that he has a conniving personality. Mr Miles is an industry wide recognised expert and a DVSA Earned Recognition auditor. However, his services could be dispensed with at any time or be subject to a selective approach to advice. I trust Mr Miles. I do not trust Mr Taylor. There is overwhelming evidence to support this view set out above.

I move then to the question ‘is the conduct of the operator such that the operator ought to be put out of business’ as per 2002/217 Bryan Haulage No.2 in my judgement the answer is ‘yes’. Whilst the proportionality principle requires Traffic Commissioners to make decisions which are commensurate with the merits of the case the decision must focus on the impact to road safety and fair competition. That impact is obvious from the factual findings, regardless of other balancing factors, I cannot trust that J & J Freight and Mr Taylor will operate in a compliant manner moving forward. When I pose the question whether other operators expect me to remove the Operator from the system, I am satisfied on balance they would say “yes”.

The seriousness of the case was discussed during the hearing. I specifically said that Mr Taylor’s statement was ‘light’ on the impact of regulatory action. This context is acknowledged by Counsel when she says at paragraph 35 of her written closing dated 22 April 2021 ‘…It is accepted that the facts of this case will come within the serious category….’ by reference to STC SGSD No. 10 on the Principles of Decision Making and The Concept of Proportionality Annex 4. The SERIOUS category includes: -

• Revocation with consideration of disqualification

Counsel then sets out a number of matters which are put forward as reducing ‘the overall seriousness’.

I have considered whether revocation is disproportionate in the circumstances of this case, but the answer is ‘no’. Even at a first Public Inquiry, revocation is not disproportionate where, in the absence of any objective justification and excuse, there have been long term, sustained, repetitive deficiencies: 2009/410 Warnerstone Motors t/a The Green Bus Service. In this case there is the aggravating feature of conniving behaviours. This Operator had ample opportunity to put things right. Accordingly, I find the good repute of the Operator lost and I have reached the decision set out in paragraph 1 above.

13. Disqualification

Counsel has not specifically addressed me on disqualification, which was her right. I do not propose to delay this decision further to allow more time. I have reminded myself of the helpful guidance on disqualification from the Upper Tribunal at paragraph 58 of the SGSD No. 10: -

“…Disqualification is a potentially significant infringement of rights and the Upper Tribunal has indicated that whilst there is no ‘additional feature’ required to order disqualification it is not a direction which should be routinely ordered. There may be cases in which the seriousness of the operator’s conduct is such that a traffic commissioner may properly consider that both revocation and disqualification are necessary for the purposes of enforcing the legislation. The provisions are in general terms, consistent with the concept of deterrence, but assessment of culpability and use of words such as penalty should be avoided. The case law indicates a general principle that at the time the disqualification order is made that the operator cannot be trusted to comply with the regulatory regime and that the objectives of the system, the protection of the public and fairness to other operators, requires that the operator be disqualified”.

In T/2010/29 David Finch Haulage the then Transport Tribunal said: “The principles that derive from these and other cases on the point can be simply stated. The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary. Additionally, periods of disqualification can range from comparatively short periods to an indefinite period, and can be confined to one traffic area or be extended to more than one”.

Counsel’s closing focuses on there being ‘some management control and appropriate systems’, and the involvement of a new Transport Consultant. However, there is no acknowledgement that Mr Taylor has been deliberately untruthful with DVSA and my office. Even when he came clean on 8 September 2020, Mr Taylor did not acknowledge the extent of his devious, commercially led behaviours. It was only when I produced direct evidence that Mr Taylor had been using Bellbourne Nursery in advance of the applications did he tell the truth. I am satisfied that if I had not raised it then, the truth would not have come out.

In terms of his father’s involvement Mr Taylor’s approach has been similar in terms of authenticity. My questions to the two drivers indicated early in the proceedings that ‘managing sources of work’ meant directing and dealing with drivers all day in terms of meeting client needs. On the ground, Jason Taylor had sufficient authority (perceived or real) to be considered ‘boss’ by drivers. It also transpired in Mr Taylor’s evidence that Mr Jason Taylor is involved in the hiring and firing of drivers.

Honesty and integrity, including a robust approach to risk and road safety are fundamental principles of the operator licensing regime. Mr Taylor has fallen short to a significant degree. As the Upper Tribunal explained in 2019/025 John Stuart Strachan t/a Strachan Haulage: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. In my judgement a period of disqualification is appropriate and proportionate. It is required to protect the legitimate hard-working industry, the employees of those businesses and all road users. Due to the honesty and integrity issues, it is not possible to set a fixed period. Accordingly, I have reached the decision set out in paragraph 2 above.

14. Finance

I have not made a finding on financial standing. There was a shortfall for the authorisation. I have received a loan facility letter and a letter from the finance company confirming the facility remains available. This does not meet the requirements as per STC SGSD No.2 Finance. The funds must be drawn down and placed the Operator’s bank account to meet the criteria. I have not made a formal adverse finding because I would have provided a short period of grace to enable this to happen if the Licence were to continue.

15. Former Transport Manager

There is no evidence that Mr Beach ever exercised continuous and effective management of the transport operations, as identified by DVSA in January 2020 and acknowledged by Mr Taylor at paragraph 3 of his witness statement. Mr Beach has not attended the Public Inquiry. Whilst it is anticipated Mr Beach does not want to be nominated again, it is my responsibility to formally note the safety risk posed by his failure to take responsibility. Accordingly, I have reached the decision set out in paragraph 3 above.

15.1 Addendum: The Operating Centre – Suitability and Availability of Bellbourne Nursery

I am surprised that Counsel for the Operator and Counsel for RBC did not visit the site before the hearing. I spent 30 minutes at the Nursery access and the surrounding area a few days prior to the hearing. I gave my observations on 15 April 2021 that the valid representors are directly adjacent to the boundary. Even with ambient noise from passing traffic and other site traffic such as the forklift, the commercial vehicles on site create noise, vibration, and dust to a sufficiently significant degree to make a material difference. I find that the Council/resident photographs were not relevant as they were further down Hurst Road. The Unit 1 entrance is the first turning immediately on your left as you turn off Stroude Road. There are good site lines and all size of vehicles with professional drivers should have no issue entering and exiting safely, even with the proximity of the Stroude Road ‘T’ junction.

This is one of those knotty sites. There is a Certificate of Lawful Use RU.11/0275 which permits the site to be used for any uses defined by Class B8 (Storage and Distribution) . It is not the same as planning permission and it actually leaves the Council with less enforcement powers. If it is not an operating centre, then vehicles of all types and sizes can enter and exit at any time (subject to the number of movement restriction) and be virtually unregulated as to consideration of neighbours. It is a site where, unlikely as it may seem, neighbours would benefit from it being a site with enforceable restrictions. It makes sense for them to mirror those on the Certificate of Lawful Use as vehicle access is linked to the storage/warehousing. If an Operator breached any specified operating centre restrictions, it would go to good repute with the Licence potentially revoked. Each case always turns on its facts at the time. If the site is considered again then an undertaking to abide by a Code of Practice along the lines of codeofpractice.pdf (tfl.gov.uk), in addition to the previous restrictions might also assist. The Codes predecessor for the 2012 Games and similar successors have proved useful with professional operators.

15.2 Addendum - delays

Mr Taylor lays much blame on the licensing team for the delays in dealing with the operating centre. It is only fair that I put it in context. As well as the Council objection, the Leeds Team received 21 separate representations against the Bellbourne Nursery application. In the end all bar two were deemed invalid. The process takes a great deal of time and management (including extensive enquires for additional information) before relevant information on validity can be submitted to me for decision. From 17 March 2020 the Licensing Team were doing this from home, on laptops, with home schooling, shared wifi, no work phones etc. An apology has been given in e mails during the process for some internal delay and not updating Mr Taylor more often. However, Mr Taylor fails to acknowledge his part in the delay – one application refused due to the advert and then changing his mind on whether he agreed the restrictions.

15.3 Addendum – driver shortage

This decision refers to the HGV driver shortage, in terms of why some drivers were not let go sooner despite non-compliance as well as the changing work profile. The Trade Associations and other Industry leaders are continuing to raise awareness of the impact significant HGV driver shortages are having on the supply chain. As a safety regulator, I share the concern that the shortage is tempting some Operators to retain drivers that should be let go where retraining and the disciplinary process have not had the desired impact. The industry desperately needs new drivers but they in turn need to be mentored by quality experienced drivers with appropriate expertise. There is a risk that there will be an irreplaceable gap. As a specialist regulator I understand the challenges, but Operators and Transport Managers must not be tempted to use drivers who fail to make the standards because it their Operator Licence and good repute will be in jeopardy.

Miss Sarah Bell

Traffic Commissioner

31 May 2021