Decision

Decision for MDL Plant Ltd (OF2033040) and Burman Plant Hire Ltd (OF2033026)

Published 18 December 2020

In the Eastern Traffic Area

Confirmation Of The Traffic Commissioner’s Decision

1. Background

MDL Plant Ltd seeks a Restricted Goods Vehicle Operator’s Licence authorising 5 vehicles and 1 trailer. The Director is Paul Steve John Snow who holds an international Certificate of Professional Competence, issued on 29 April 2014. The application was received on 14 May 2020. The applicant has referred to available funds contained in its bank account, which has been obtained via a loan from C & L Construction Ltd which holds OF2021174 (page 37). The directors are said to be friends. That loan is for a period of two years and an undertaking was given for a finance review after expiry of that period.

MDL Plant Ltd proposes the use of one Operating Centre at Lodge Works, Great Ashfield, Bury St Edmunds IP31 3HA. It originally proposed the use of two maintenance contractors but in evidence this narrowed to just Richard Hails Engineering Ltd, to undertake Preventative Maintenance Inspections of vehicles at 6-weekly intervals for vehicles and trailers.

Burman Plant Hire Ltd seeks a Standard National Goods Vehicle Operator’s Licence authorising 2 vehicles and 1 trailer. The Director is Matthew William Burman. The nominated CPC holder is Paul Steve John Snow. The application was received on 14 May 2020 and is intended to facilitate a split in the business currently operated under OF0234315, held by Burman Plant Ltd, which has provided financial support for the application. I was concerned by the similarity of name but was assured that Burman Plant Ltd trades as ‘Custom Concrete’.

There is one proposed Operating Centre at Beaumont Farm, Ampthill Road, Silsoe, Bedford MK45 4HD. The applicant has nominated Pip Bayleys Ltd to undertake Preventative Maintenance Inspections of the Scania vehicle and trailers at 10 weekly intervals.

Mr Snow was previously a director and transport manager for OF0224621 (Miles Drainage Ltd). The licence was granted in 1995 with no adverse history recorded. The company went into liquidation and was subsequently revoked in July 2020.

2. Hearing

The Public Inquiry was listed for today, 8 October 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. MDL Plant Ltd was present in the form of Mr Snow, Burman Plant Hire Ltd was present through Mr Burman, and both were represented by Jared Dunbar of Dyne Solicitors.

3. Issues

The applicants failed to satisfy the Deputy Traffic Commissioners that the applications should be granted on the papers. Representations were received electronically on 1 October 2020, but hard copies were not received until 5 October 2020 at the latest.

The Public Inquiry was called to allow the applicant, MDL Plant Ltd, to satisfy me that the requirements of the legislation are met and, in particular, under the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• Section 13B - fitness to hold an Operator’s Licence
• Section 13C(2) - satisfactory arrangements to comply with the rules on drivers’ hours and tachographs
• Section 13C(4) - to have satisfactory arrangements and facilities to maintain vehicles in a fit and roadworthy condition
• Section 13D – availability of finance to support maintenance compliance

It was also called to allow the applicant, Burman Plant Hire Ltd, to satisfy me that the requirements of the legislation are met and in particular:

• Section 13A(2)(c) – financial standing
• Section 13A(2)(d) - professional competence
• Section 13A(3)(a) - TM to be of good repute
• Section 13C(4) - to have satisfactory arrangements and facilities to maintain vehicles in a fit and roadworthy condition

The onus is on each applicant to satisfy me that its respective application meets the statutory criteria. Schedule 3 of the Act at paragraph (2) it states:

“In determining whether a company is of good repute a traffic commissioner shall have regard to all of the evidence including, in particular-

…(b) any information in his possession as to the previous conduct of-

(i) any of the company officers, servants or agents, or

…if that conduct appears to him to relate to the company’s fitness to hold a licence”

Burman Plant Hire Ltd had already offered undertakings for the proposed Transport Manager to attend CPC refresher training by November 2020 (now delayed) and for a further review of finance. In correspondence dated 4 August 2020, MDL Plant Ltd offered to have a compliance audit, to which I refer below.

4. Summary of Evidence

Paul Steven John Snow was a Director and Transport Manager for OF0224621 (Miles Drainage Ltd) which went into liquidation on 15 May 2020. Mr Snow wrote to the OTC in a letter dated 20 May 2020, which was not received until 17 June 2020. The licence was subsequently revoked on 7 July 2020 (page 46). The operator was declared insolvent and was found to owe a significant debt to the Crown. This apparently arose mainly from an overrunning drainage project in Somerset. Both applicants referred to the decisions of the Managing Director of that previous entity.

The compliance history for Miles Drainage Ltd raised questions as to how compliance would be met in respect of these applications. I refer, in particular, to the annual test history indicating a failure rate of 34%, around items which should have been checked in advance of test, even into October of 2019, with roadside enforcement action in February 2020.

A letter was sent to Mr Burman informing him of this issue and asking for detailed proposals as to how the statutory duty of the Transport Manager would be met. Mr Snow responded in a letter dated 27 July 2020 (page 39). I heard in evidence that the connection arose because Mr Burman also previously worked for Miles Drainage Ltd.

He confirmed the measures that he will take if appointed as transport manager for Burman Plant Hire Ltd. He indicates that he will not be employed by the company but under contract stating his roles and responsibilities, and that he is looking forward to setting up the systems to ensure that the vehicles and drivers are operated to the highest standards of safety and compliance.

In evidence he was apparently unaware of the expectations set out in paragraph 54 of Statutory Document No. 3 on Transport Managers. Both Mr Snow and Burman Plant Ltd should have read that guidance. His response appeared to refer to the headings identified in the guide, which accompanies the transport manager application. He describes the web-based system to ensure that records are received quickly, checked and dealt with appropriately. That system is operated by Trutac. In respect of driver administration, he indicates that regular checks will be carried out on licences and CPC qualifications with access to be given by each driver to access the DVLA website. However, as I heard in evidence, Mr Snow is not currently trained to use the Trutac system.

In terms of driver management, he states that he will have full access to the company web-based tachograph analysis system. He indicates that he worked in the same specialist commercial sector as the applicant and therefore has an in-depth understanding of the business into the systems which he needs to implement. He undertakes that training will be delivered to all drivers in the vehicles and equipment, which they are expected to operate. On operations, drivers will be asked to complete an electronic defect report via the web-based system. All defects will therefore be reported directly to him and acted upon. Driver rest periods and the working time directive will also be monitored via the same system.

In terms of vehicles, he indicates that all vehicle maintenance will be carried out by the specified manufacturer’s main dealer. He will rely on the main dealer maintenance platform, which allows him access via the web to all maintenance records and the maintenance schedule. However, a maintenance planner will be posted in the applicant’s office to keep drivers without web access up to date. He indicates that checks on discs, loading, tachograph calibration, and height indicators will be incorporated into the daily checks. Management will, as indicated, involve the electronic preventive maintenance inspections; he states that he will have ultimate control of vehicles and will be in regular contact with management and the contractor. I was concerned to note the apparent confusion as to when and how printouts disclosing the full results from roller brake testing would be made available. Where a vehicle fails to achieve the pass values on the print-out but still shows as having locked, an operator and Transport Manager should be in a position to question the maintenance contractor about the results and to seek an explanation. They should be able to see whether the vehicle was sufficiently loaded, whether the vehicle exceeded the minimum efficiency required in the manual, and to question significant imbalances.

Written representations, made on behalf of MDL Plant Ltd, were received on 5 October 2020 and therefore outside the date given in Directions. This risks the impression that the applicant is not capable of following instructions. No explanation or apology was offered but I was told in the hearing that this was through no fault of the applicant.

Reference is made to Miles Drainage Ltd, which originally undertook land drainage work but moved to the installation and maintenance of BT infrastructure. In 2004 Mr Snow joined the company as a driver and was appointed transport manager in or around 2014. On 1 June 2015 he was appointed a director. An initial meeting with liquidator’s took place on 26 March 2020 with appointment taking place on 13 May 2020. My office was apparently informed on 20 May 2020 leading to the revocation on 10 July 2020. As I have indicated, that is not the case. I refer to Statutory Document No. 5, paragraph 52, as per the Tribunal in 2008/410 Brian Hill Waste Management Ltd: Directors will have had advance notice of the financial difficulties and those directors should therefore have notified the traffic commissioner, via the Office of the Traffic Commissioner, before the procedures are underway.

The representations rely on an undated Traffic Examiner operator report at tab 4 of its bundle, which refers to Miles Drainage Ltd. The representations repeat the areas of concern: initial training and induction of drivers on drivers’ hours, loading techniques, and driving licence checks. However, it is later accepted that the annual test pass rate was below the average but only 10% below that national average final pass rate. Those representations miss the point. An operator is not required to meet a national average but is required to ensure that vehicles are operated in a fit and serviceable condition at all times. An operator is expected to prepare vehicles for test so that they pass on the first presentation. 10% below the national average at final test actually equates to a failure rate of 34% failure rate, i.e. over 1 in 3 vehicles failing. I also refer to the incident of overloading recorded on 11 September 2018. The operator then purchased a vehicle to prevent a repeat and disciplined the driver.

I am told that the applicant MDL Plant Ltd intends to instruct Richard Hail’s Engineering Ltd to undertake inspections on 6-weekly basis, due to the age of those vehicles. The maintenance arrangements are different to those used by the previous operator. Rolling road brake tests will take place. In evidence I was assured that this would take place at every PMI. It led me to test Mr Snow’s ability to read a roller brake test print-out. His knowledge of brake testing appeared to be lacking and he undertook to ensure that his refresher course will ensure that this is addressed. I noted that one vehicle is equipped with a grab crane. I referred him to the DVSA Guidance: Heavy vehicle brake test: best practice. I was also referred to the usual arrangements such as a forward planner and standard driver defect reporting sheets. I am assured that drivers have completed written tests on defect reporting having watched the DVSA video. I have noted the blank proforma prepared as an audit of driver defect reporting, but I have very little detail as to the random checks which are proposed. I am referred to policies and procedures at tabs 28 and 29 together with quarterly driver licence checks with forms to be found at tabs 23 and 24. I am also assured that drivers have undergone a written competency test to assess their knowledge of drivers’ hours requirements and there is a Handbook at tab 15 of the bundle. That has not been shared with Burman Plant Hire Ltd. Correspondence indicates that the RHA has been retained to carry out an independent analysis of those records to include missing mileage reports. Infringement meetings will take place on a monthly basis.

The written representations refer to two vehicles YJ08 AYH and KS58 HLN. I am informed that 25 people work for the applicant. It is engaged in the installation and maintenance of BT infrastructure. The company has engaged a transport consultant, Gary Riches, from NLT Training, who will visit once a quarter for the first year and thereafter he will provide annual written audits. I am unsure how those audits would be independent as the auditor will have advised the operator for the first 12 months of proposed operation and provided training. I am informed that Mr Snow is booked on a Transport Manager refresher course on 3 December 2020, also supplied by NLT. The applicant promises to join the RHA if a licence is granted.

Burman Plant Hire Limited has engaged Pip Bayleys as its maintenance contractor to undertake rolling road brake tests at every PMI as with the vehicles on the Burman Plant Ltd licence. It will be for Mr Snow to review those forms and I have already expressed my concerns at his ability to do so. I have seen a forward planner.

In written representations received on 1 October 2020, I am referred to the historic compliance by Burman Plant Ltd, which undertakes trenching and installation work, machine and operator hire. The business has been split so that Burman Plant Ltd will operate as a concrete business and the applicant will undertake the trenching and installation work. I was informed that Burman Plant Hire Limited intends to purchase a Scania, BK16 MYB, from Burman Plant Limited.

The applicant refers to reliance on electronic defect reporting using an app. Drivers across both companies are said to have received the written procedure produced and have been tested in this knowledge following viewing the DVSA ‘Check it Out’ video. In the same way drivers have been tested on Drivers’ Hours knowledge and received guidance. Analysis will be carried out by TruTac Ltd. Representations refer to the production of ‘standard reports’. I explored this with Mr Burman in evidence when it emerged that Mr Snow has yet to be trained on the system. I was assured that the monthly infringement meetings would involve Mr Burman, Mr Snow, and the relevant driver. I was also referred to procedures to prevent overloading, and for quarterly Driving Licence Checks.

I was persuaded to grant applications for interim authority under section 24(6) for a limited period of 3 months to allow both applicants to satisfy me that I may proceed to substantive grant. All of the systems described in evidence and summarised above, depend on the ability of Mr Snow. He is booked to attend a CPC Refresher course on 3 and 4 December 2020. Matthew Burman and Sarah Marchant are booked to attend Operator Licence Awareness Training on 14 October 2020. There are other actions which also need to be evidenced. Mr Snow indicated that he would join a trade association to ensure that his compliance management remains up to date. He needs to be trained on use of the Trutac system and for driver defect reporting. It was impressed on Mr Snow and Mr Burman that any Transport Manager must be permitted to exercise effective and continuous management of the transport undertaking. I am to be supplied with a copy of the key performance indicators, which will form the basis of Mr Snow’s monthly reports to Mr Burman. Mr Snow will also provide me with evidence that he has received training on how to manage and read laden roller brake test reports during his planned CPC refresher course. On that basis interim authority was granted to both applicants for a period of 3 months from the date of this hearing.

Richard Turfitt

Traffic Commissioner

8/10/2020