Decision

Decision for NMT Plant Crane Hire Ltd (OF0095414)

Published 29 April 2021

0.1 IN THE EASTERN TRAFFIC AREA

1. NMT PLANT CRANE HIRE LTD – OF0095414

1.1 CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

2. Background

NMT Plant Hire Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 14 vehicles and 15 trailers. The Directors are Mark Richard Ambridge, Nicholas Paul Ambridge, and Timothy Lawrence Ambridge.

There are two Operating Centres: 2 Postley Road, Woburn Industrial Estate, Kempston, Bedford MK42 7BU, and Telegraph House, Windsor Road, Bedford MK42 9TA. The licensing record shows maintenance to be undertaken in-house with Preventative Maintenance Inspections of vehicles and trailers originally at 8-weekly intervals, since 15 December 2020 that has reduced to 6-weekly intervals. However, the audit submitted suggests inspections by NMT Crane Hire and Brian Currie, both located in Bedford. In evidence it was confirmed that two vehicles are on repair and maintenance contracts, but this has still not been formally notified.

The operator attended a Public Inquiry on 31 November 2011 where adverse findings were made in respect of maintenance, driver reporting and tachographs. Undertakings were given so the licence was then curtailed to 10 vehicles and 10 trailers. The licence was downgraded from Standard National to Restricted in March 2020 on the basis that ‘over the years crane hire has become dominant in everything we do and no longer haul goods for others. On the rare occasion that needs transportation on behalf of our clients is dealt with by D & G Noble’.

The case was considered at a Preliminary Hearing on 8 December 2020 when the operator was represented by Director Mark Ambridge, accompanied by John Blakeley, when it was decided to call the operator to a Public Inquiry. The change in maintenance schedule followed that hearing. Signed representations dated 30 March 2021 were received in advance of the Public Inquiry, with an accompanying bundle of documents.

The Directors were previously linked to a Standard National Licence, OF1027390, held by Wildman Transport (Bedford) Ltd. That licence was surrendered on 2 September 2016.

3. Hearing

The Public Inquiry was listed for 13 April 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator appeared by video link in the form of Mark Ambridge, Director, accompanied by an employed CPC holder, John Blakely, and represented by Rebecca Dart of CE Transport Law.

4. Issues

The public inquiry was called for me to consider whether there were grounds for me to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(b) – condition to notify relevant changes – maintenance

• 26(1)(c)(iii) – prohibitions (page 87)

• 26(1)(e) – statement regarding maintenance arrangements and intervals

• 26(1)(f) – undertakings (drivers’ hours and tachographs, vehicles and trailers fit and serviceable, written driver defect reporting, maintenance records)

• 26(1)(h) – material change with regards to fitness and finance

• 28 – disqualification of directors and operator to be considered

In preparing the case for hearing it was noted that company accounts were marked as overdue on the Companies House register (8 March 2021). The operator was directed to lodge updated financial and other evidence in support by 30 March 2021. I am informed that the operator is a subsidiary of NMT Plant Hire Limited, as explained in the accountant’s letter dated 29 March 2021. I am not aware of the group holding an operator’s licence and this licence is held by the subsidiary.

5. Summary of Evidence

DVSA Vehicle Examiner, Glenn Winn, and Traffic Examiner, Claire Nicholson, carried out a joint visit to the Postley Road address on 17 September 2020.

Mr Winn’s report can be found at page 33. It has been summarised in the Case Summary, as follows:

• Infrequent and missed inspections, maintenance not managed, with incomplete documentation

• PMI intervals not set as per the Guide to Maintaining Roadworthiness

• Poor annual test history with a 38.64% failure rate

• Ineffective driver defect reporting system, with no means of recording rectification or in accordance with the Guide to Maintaining Roadworthiness

• VOR system in place being ineffective

• No evidence of safety defect and recall system

• No evidence to support the correct operation of emissions control systems

• No effective wheel security or retorque system

• No tyre management

• Prohibitions were noted for vehicle overloads, warning light indicating fault, rear registration plate lamp being inoperative and damaged mirror glass

Mr Winn expressed concern that the responsible person did not appear to demonstrate effective management, although Mr Winn acknowledged that he had only been in the role for a few months.

Ms Nicholson’s report was more positive. She noted the following shortcomings:

• Systems in place for tachograph calibration and MOT certificates, personal development, driver induction and training, and monitoring individual infringements could be improved.

• Advised to use one system for the management of driver’s hours and working time.

But she was satisfied that the management of vehicle testing, driver’s hours and working time were in the process of being improved by the responsible person. The operator was advised to sign up to digital licensing services.

The operator’s response was apparently dated 1 October 2020 and is at page 71 of the bundle. It undertakes:

• that specified vehicles will be scheduled and inspected every 6 weeks, managed using a wall planner and electronically.

• to employ a vehicle off road system so that keys for off road vehicles will be removed from the key cupboard and remain in the workshop until vehicles have been repaired and signed-off.

• that every vehicle will have a roller brake test at every inspection, on equipment which will be inspected and calibrated every 6 months.

• that the new defect reporting will include an assessment and rectification sheet to be completed, before being signed-off.

• that new triplicate driver defect books will be employed, with reports to be handed to the responsible person and the workshop, although the operator proposed use of the weekly timesheet to record AdBlue checks with a spreadsheet to monitor vehicle consumption.

• that drivers will receive training on walk round checks and to be provided with electronic access to the Guide to Maintaining Roadworthiness.

• an on-site tyre fitter will carry out monthly tyre inspections.

• to employ a third party to conduct a system audit to check standards.

The operator admitted that there had been shortcomings. It blamed the missing maintenance records on Mr Blakeley’s predecessor. It claimed that prohibition notices had been noted and dealt with. Paragraph 60 of its written representations refer to an audit carried out by its training providers. That appears to be the document prepared by Milebay Consultancy Ltd and termed a “Company Operator Licence Health Check”. That document usefully identifies the evidence on which some of the conclusions are based. It records that the information was provided by John Blakeley and was prepared prior to his attendance at recent refresher training. The audit records reliance on a computerised planning system. However, KX57 ECC missed an inspection with the interval being extended to over 13 weeks from September 2020. The initial annual test pass rate is recorded as 75%. Whilst the audit did not consider the management of drivers’ hours, working time and licence checks (instructions were included in the operator’s bundle), it concludes that the maintenance arrangements are mostly satisfactory with further work required on the defect management. The in-house forms are supplied immediately but there is a 2-to-3-day delay in obtaining the reports from Brian Currie. That can be addressed through the cloud-based system. The audit describes the completion of driver defect reports as being intermittent and, despite some improvement in 2020, there remain significant issues with the standard of driver reporting. Mr Blakeley has apparently delivered separate toolbox talks. (I have been provided with a register for 30 March 2020 but should be recorded as 2021). Mr Blakeley is reported as having started work to bring vehicle files up to an acceptable standard, but the auditor makes recommendations regarding the cross-check of PMIs with driver defect reports and the implementation of gate checks. He also highlights the absence of safe loading procedures.

An examination of the Preventative Maintenance Inspection records at the Preliminary Hearing suggested failings even after the DVSA intervention. The operator indicated that a new IRTEC qualified fitter had recently been employed but the records suggested anomalies in the roller brake testing. As indicated, the operator had failed to notify OTC that two vehicles were being inspected under a repair and maintenance contract with Brian Currie. The records suggested that driver detectable defects were regularly identified at the maintenance inspection with no evidence that the drivers had reported those defects.

I previously noted that PMI sheets appeared to be out of date with intervals extended. I have updated my observations and noted improvement in intervals and format:

AE04 PRV –

• 10 (commenced 4) March 2021, roller brake test but no print-out attached (recorded 40%, 24%, 11% as unladen), near side wing damaged and not repaired with only the trailer control air valve addressed and 5 defects left to the customer, which might explain the delay in sign-off but other left to monitor or the annual test.

• 21 (commenced 19) January 2021, roller brake test at 78% of GVW = 66%, 42%, 46% but noticeable imbalances on the offside, across all axles and corrosion to brake pipes, noted driver’s and passenger (again) seat, exhaust blowing, no height marker.

• 7 December 2020, not properly signed-off, brake test with only two readings and a different GVW entered, passenger seat noted.

• 2 November 2020 (12 weeks and 1031 km since previous PMI), roller brake test but all brakes locked with insufficient load on axle 2, recorded defects included seats torn, mirrors, oil leaks warning lights, no rectification work signed-off and no driver report available.

• 4 August 2020, roller brake test but all brakes locked with insufficient load. Vehicle was off-road from 19 October to 2 November 2020, recorded defects included tachograph calibration, insecure battery, number plate light inoperative but no rectification or driver report.

• 17 June 2020 (13 weeks since the previous PMI - incorrect odometer reading), no brake test, recorded defects included screen washer not working, front fog lamps but no driver report available.

• 16 March 2020 (18 weeks and 5 days since the previous PMI), no brake test.

• 6 November 2019, no brake test, recorded defects included sunroof leak, ripped seat, gear stick insecure, but no driver report available.

Trailer A005058 –

• Inspections on 24 March 2021, 9 November 2020 after 37 weeks from 21 February 2020, showing multiple driver defects and unclear brake checks, despite the parking brake cable having snapped and therefore not signed-off.

I had previously recorded: DX08 DWC –

• 9 February 2021, no brake test, recorded washer inoperative, exhaust flexi pipe split, off-side rear marker lamp inoperative, off-side front marker light inoperative but no driver defect report, with Nil report on 4 February 2021.

• 6 January 2021 roller brake test on same date 72% of GVW = 57%, 23%, 17% but imbalances on the offside across all axles, reported wipers split, near-side marker inoperative and recurring issues with the wipers.

• 20 November 2020, roller brake test on preceding day, 75% of GVW = 60%, 25% and 17%.

• 5 October 2020, roller brake test but all brakes locked with insufficient load.

• 25 August 2020 (23 weeks and 1 day, 12425 km since the previous PMI), roller brake test but shows vehicle as a bus, all brakes locked, recorded defects included windscreen replaced, replaced tyre, wiring but no driver report available.

• 16 March 2020, no brake test, recorded defect referred to Adblue cap missing.

• 8 February 2020, roller brake test but insufficient load on axle 2.

• 23 December 2019, no brake test, recorded defects included marker lights, chips in windscreen, bulbs but no driver report available.

I was made aware that the Directors had attended training delivered by Milebay Consultancy Ltd: Operator Licence Awareness training – Mark Ambridge on 16 December 2020, Nicholas Ambridge on 13 January 2021, and Timothy Ambridge on 17 February 2021 (which will only now take place tomorrow). Mr Blakely was booked to attend a 2-day CPC refresher course on 11 and 12 January 2021, which he confirmed in evidence. I have seen various certificates confirming the attendance of Mark and Nicholas Ambridge.

I regret that my examination of the maintenance records following the Preliminary Hearing and questioning about the results of the operator’s own audit provided neither reassurance as to the operator’s abilities going forward or examples of prompt and appropriate action. The operator apparently left the Preliminary Hearing under the impression that concerns were mainly centred on finance. I refer to what should have been obvious from its own maintenance records at that stage. The operator was then given opportunity to adopt the advice of its auditor following his advice given at the start of February 2021. I heard of minor improvements and a list of commitments to gain further training for maintenance staff, drivers, the Directors, and the CPC holder but none of this was reflected in the compliance documentation. I was told about the employment of a workshop manager and another IRTEC qualified technician within the last 3 weeks, but that has done little to address the actual management and oversight of the compliance systems and in particular the maintenance of vehicles. The Director and CPC holder were wholly unaware of the fact that AE04 PRV had not been signed off as roadworthy despite the 6 days spent with a Daf dealer in Durham. The vehicle was then repaired in-house, with no explanation for the driver detectable defects and no re-presentation or completion of a PMI. I was told that the vehicle had been presented for a further brake test after work was carried out on the brakes but, like so much of what the operator told me, there was no documentary evidence to back this up. The evidence showed a lack of explanation for, and speed in, addressing deficiencies or even applying DVSA guidance which was in circulation from November 2018.

6. Determination

Based on the evidence summarised above, I am satisfied that I may make adverse findings under the following sections: 26(1)(b) – condition to notify changes in maintenance, 26(1)(c)(iii) – prohibitions, 26(1)(e) – statement regarding maintenance arrangements and intervals, 26(1)(f) – undertakings (vehicles and trailers fit and serviceable, written driver defect reporting, maintenance records).

In 2013/082 Arnold Transport Ltd the appellate Tribunal stressed the importance of trust. That point was made by Ms Dart in her questioning of her clients. I quote from that decision: It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It is also important for operators to understand… “actions speak louder than words”. We agree that this is a helpful and appropriate approach. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry.

The involvement of a CPC holder might offer some assurance. The written submissions refer to the circumstances prior to the downgrade of the licence when a Stephen Battison was employed as the transport manager up to February 2020. The licence was then downgraded in the following month but due to the pandemic the operator was unable to identify a replacement transport manager. In that period the operator allowed the inspection intervals to be exceeded and failed to implement a risk-based approach or to even refer to the Contingency Statutory Document. Mr Blakely was employed from July 2020, shortly before the DVSA visit. He has only recently attended a 2-day CPC refresher course on 15 and 16 February 2020. He had been in that post for six weeks when the Examiner visited but had apparently noted the considerable problems with previous compliance and had started to make changes and improvements. I regret that even at the date of this hearing those changes have not been sufficient so that I might satisfy myself as to compliance. In those circumstances the suggestion to employ another consultant to advise carries very limited weight.

It is ultimately the directors’ fitness to manage and oversee the operator licence requirements, which is key to my decision. Two of the directors attended operator licence awareness training recently. I am referred to the laden roller brake tests which I am told will take place going forward, but with very limited evidence. I again refer to the previous Public Inquiry history and the recent findings at the Preliminary Hearing. I am told that tachographs and the roller brake tester have been recently calibrated, but that is all that is required to make them effective. To a large degree the operator’s case relies on Mr Blakely to deliver compliance. That was the case with the previous transport manager who was formally nominated, as this operator enjoyed a standard operator’s licence at that time.

For the reasons set out above I am not attracted by the suggestion that the problems were due to a lack of overall control by the previous transport manager when that ultimate responsibility falls to the Directors. I have noted from the audit how Mr Blakely monitors the compliance. I noted that he is also responsible for monitoring the four work-shop staff but on my findings today I share the concern expressed by the auditor. As the representations acknowledge there has been poor maintenance despite a previous Public Inquiry and a failure to manage the systems required. That is also reflected in the annual test history. That of its own should have alerted the Directors of the need to act. Ms Dart optimistically hopes to persuade me that the case might fall into a Moderate starting point but acknowledges that I may view it more seriously. That is certainly the case. I refer to the decision in 2012/025 First Class Freight, Directors 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.

Even at the date of this Public Inquiry and following attendance at training, Mark Ambridge does not appear to possess sufficient knowledge to exercise the required level of oversight. I am assured that he and the other Directors are committed to ensuring future compliance. But the evidence to date does not satisfy me as to that fact. It is accepted that the Directors failed to exercise appropriate management. It is said that they only became aware of the issue following the departure of Mr Battison, but a number of those matters continue to be at issue today and even after a Preliminary Hearing and audit. It gives me very real doubt as to whether the operator will ensure compliance and promptly.

The operator suggests positive features should be weighed into the balancing exercise: a compliance audit has been undertaken since the Preliminary Hearing. However, the operator must and does acknowledges the previous public inquiry in 2011 which raised similar issues in relation to maintenance. The representations accept that “simply employing a transport manager” was not sufficient to meet the operator licence obligations. They refer to a more involved approach to the communications between the Directors and Mr Blakely (weekly), even though he has no formal transport manager position. I acknowledge the Traffic Examiner’s findings and the operator’s cooperation with the investigation. That is countered by the previous history, including a Public Inquiry, the ineffective management and control, which exists even now, with promises but no actual training of the drivers and fitters to address the deficiencies and a low average annual test pass rate.

The operator has suggested undertakings whereby all Directors would attend operator licence awareness and provide evidence of attendance; to provide a full compliance audit within six months of this hearing and at 6 monthly intervals for the next two years; and to engage a transport consultant.

I have drawn back from revocation although fitness is now so severely tarnished that the operator can be left in no doubt as to the likely future of this operation if it does not now get a grip. The promised audit which must be returned within 4 months must confirm that the operator is fully compliant. There is a need for deterrent action to make very clear to this operator what will happen if it does not act. As the Tribunal made clear 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”. I accept that there was no intent here, but the basic requirement must be met, or the operator will have to be removed. In the circumstances of this case there must be a material impact, to make the message clear to this operator and others. I listened to the evidence on the impact of any intervention, but I am also mindful of the Tribunal’s words in 2013/047 Dundee Plant Hire Ltd. The operator’s licence will be curtailed to 9 vehicles and the existing number of trailers from 23:45 tonight, 13 April 2021.

Richard Turfitt

Traffic Commissioner

13 April 2021