Decision

Decision for Neil Anthony Dibb T/A Neil Dibb Haulage

Published 6 June 2022

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

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

1.1 Neil Anthony Dibb T/A Neil Dibb Haulage OB1100825

And

1.2 Transport Manager Neil Anthony Dibb

2. Public Inquiry held at Hillcrest House, Leeds on 16 March 2022

I find that the Transport Manager has failed to exercise the continuous and effective management of the transport activities of the operator required of him, and has lost my trust as an individual such that he Mr. Anthony Dibb has lost his good repute to act as a Transport Manager and is disqualified from acting as a Transport Manager for this or any other operator’s licence with effect from 23:59 hours on 31 May 2022 for an indefinite period, under paragraph 16(2) of Schedule 3 of the Goods Vehicles (Licensing of Operators) Act 1995 (hereby referred to as ‘the 1995 Act’).

I specify the following measures under paragraph 17 of Schedule 3 of the 1995 Act with which Mr. Dibb must comply before he may apply to the Traffic Commissioner to cancel or vary this order made by me:

• Mr. Dibb shall complete the Transport Manager CPC examination training course, and pass all heads of the Transport Manager CPC examination in goods transport.

The Operator’s Standard National Good Vehicle Operator’s Licence currently authorising operation of 1 vehicle and 2 trailers is revoked with effect from 23:59 hours on 31 May 2022, under the following provisions.

Section 27(1)(a) of the 1995 Act – it appears to me that the Operator no longer remains of good repute for the purpose of this operator’s licence.

Section 27(1)(a) of the 1995 Act – the Operator no longer meets the requirements of professional competence for the purpose of this operator’s licence.

Section 26(1)(h) of the 1995 Act – the following material changes in the circumstances of the Operator that were relied upon in issuing this licence:

• [REDACTED]– the Operator failed to notify the Traffic Commissioner of the aforementioned convictions as required by his operator’s licence;

• the Operator was subject to a DVSA enforcement check on 17 November 2021 in Suffolk. He was the driver of the vehicle / trailer combination stopped, laden with fertilizer. The vehicle, registration mark RX04 EUU was shown on DVLA records at that time as ‘SORN’ (Statutory off Road Notification) and was untaxed with vehicle exercise duty (VED). Mr. Dibb stated that he had not got the V5 registration document for the vehicle when he purchased it from the trader, and was unable to pay the VED without it;

• the Operator stated at Public Inquiry that at the time of the stop on 17 November 2021 he was still waiting for the V5 from the DVLA having applied for it at the end of September 2021 when he acquired the vehicle. He knew the vehicle was untaxed, and had driven the vehicle with this knowledge since he obtained the return of his vocational driving licence entitlement following the end of disqualification from driving all motor vehicles;

• the Operator further admitted on questioning that he continued to drive the vehicle for several days after the DVSA stop of 17 November 2022, having been advised that he was to be reported for using a vehicle whilst SORN registered and knowing it was wrong to drive the vehicle without having notified the DVLA of the end of the SORN and paid the appropriate VED. I consider this to be the most serious infringement not only as a driver but also as the Operator and Transport Manager on this licence. He put commercial considerations ahead of compliance with the law in the particular circumstances;

• the maintenance and tachograph records produced by the Operator for the Public Inquiry were incomplete and provided for the maintenance and use of vehicle registration mark RX04 EUU since November 2021. The Operator stated that there are no maintenance or other records for the balance of the 6 month period as he had no vehicles specified against the licence, as his previous vehicle had been sold in December 2020, and he retained only its registration mark rights, and he had not operated the replacement bought in August 2021 so had not provided records or specified it until November 2021. Licence records however contradict this account. G16 NDH was specified 1 November 2021 and RX04 EUU was specified from 11 November 2021;

• the Operator failed to provide me with clear, consistent answers concerning the vehicle operated and specified under this licence since November 2021. He stated that the vehicle initially specified and operated had borne registration mark RX04 EUU, added 11 November 2021, and that this vehicle had then been re-registered under registration mark G12 NDH. G16 NDG had been removed from the licence and had been sold. Following the end of the Public Inquiry the Operator then advised my clerk orally that he had been mistaken and that he now believed he had in fact re-registered mark RX04 EUU vehicle under registration mark GU16 NDH, the mark shown on the maintenance records produced to the Public Inquiry. The DVSA stop on 17 November 2021 was prior to such re-registration so refers to the registration mark RX04 EUU. The specified vehicle on licence records remains registration mark RX04 EUU. At best the Operator and Transport Manager has failed to follow the requirement concerning the notification of vehicles ‘in possession’ for the purposes of the 1995 Act, removing and adding these to reflect the actual vehicle in possession and being operated (or no longer operated, as the case may be);

• the driver defect report sheets produced were of a ‘nonstandard’ type and failed to record all the information reasonably expected for each check undertaken and the rectification of defects, such as vehicle mileage at the time the check was completed, and clear defect rectification details. My review of the vehicle and trailer maintenance sheets also raised various concerns and questions put to the Operator / Transport Manager for response. Amongst other issues was methods and records of brake testing, clear and full recording of defect rectification, and the signing and dating of records. Whilst the Operator expressed his willingness to comply with any requirements asked of him, he failed to demonstrate in my view the understanding of record keeping skills and proactive thinking required to properly carry out the roles of operator, transport manager, and maintainer (whilst also acting as driver);

• the Operator submitted to me that he had ‘anticipated’ he could no longer carry on all of the foregoing roles as he did not have sufficient time and, despite the TM CPC refresher training of 2019, did not consider himself sufficiently up to date, knowledgeable and independent to act as the transport manager for his own licence. He also submitted that a third party maintenance provider could provide an independent check and record of the road worthiness of the vehicles and trailers prepared by him for inspection. These possible positive measures had not however been implemented at the date of inquiry and I find this is an Operator / Transport Manager who has waited until the Public Inquiry without action despite this apparent insight, waiting ‘to be told what to do.’ I afford less weight to this evidence of possible improvement accordingly;

• the Operator and Transport Manager had, by his own admission failed to submit any tachographs to the external analysis company in the previous 6 months, only doing so in preparation for the Public Inquiry. The tachograph analysis then undertaken and produced revealed repeated, ongoing infringements of driver’s hours rules, particularly the rule on minimum breaks to be taken under the ‘4 and a half hour driving’ rule, with a number of brakes insufficient by 10 minutes or more, as well as apparent mode switch offences. He admitted he had been ‘surprised’ by the number of issues reported on analysis. This is a clear, extended breach of the undertaking to have proper arrangements in place to ensure that the rules on driver’s hours and tachograph records are met;

• vehicle registration G16 NDH failed its MOT on 17 September 2020 for multiple items and was issued with a prohibition on 1 October 2020 when presented for re-test. The vehicle passed its re-test on 5 October 2020. The Operator advises that this vehicle was sold in December 2020 but as found above it remained specified against this licence until 1 November 2021.

This case is not without some positive features. This Operator appeared at the Public Inquiry and since their previous Public Inquiry, most recently on 24 September 2019, the prohibition rate on encounters (outside of annual test) has been zero, although various inspection notices were issues against the vehicle and trailer on inspection on 17 November 2021. Some records are kept and have been produced indicating that there are some systems in place to comply with licence undertakings but the arrangements and records of these are incomplete. Either records are absent (e.g. monthly tachograph analysis and management or wheel re-torquing) or incomplete, and are insufficiently clear (as considered above) to provide an adequate, auditable record to demonstrate that undertakings have been complied with (and will be in the future).

Having considered all of the above, particularly the deliberate use of the vehicle whilst registered SORN, before and after the DVSA stop of 17 November 2021 (despite wanting to pay the tax but knowing it had not yet been paid and that the vehicle should not be used until this had been completed). I find that I no longer trust this individual to comply with the requirements of this licence and the law as an Operator or as a Transport Manager. Put simply, the blatant failings as well as the disregard of the law was so serious as to forfeit my trust in this individual to comply at this time, and having so found I have ordered as in paragraphs 1 and 2 above.

I have allowed a short period of continued operation before the revocation takes effect so as to enable the business to plan for this. I have not made an order under Section 28 of the 1995 Act so the Operator remains at liberty to apply for a new operator’s licence, seeking to satisfy the Traffic Commissioner that he has learnt from his wrongdoings, the Public Inquiry process and this decision, so as to restore his good repute as an individual and that the arrangements for professional competence and maintenance of vehicles and trailers proposed on application satisfy the Traffic Commissioner that the shortcomings found by me in systems and records of these to comply with the law and licence undertakings shall not be repeated.

Fiona Harrington

Deputy Traffic Commissioner for the North East of England

16 March 2022