Decision

Decision for Perry Road Transport Limited and David George Pavelin

Published 26 February 2024

0.1 IN THE EASTERN TRAFFIC AREA

1. PERRY ROAD TRANSPORT LIMITED - OF2044850

1.1 AND

2. DAVID GEORGE PAVELIN – TRANSPORT MANAGER

3. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

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4. Background

Perry Road Transport Limited holds a Standard National Goods Vehicle Operator’s Licence authorising 3 vehicles and 4 trailers. The Directors are Neal Gordon Larke and Peter Ellis. The Transport Manager was David George Pavelin. He qualified through Acquired Rights. On 15 January 2014 I was alerted to an on-line application to add Ashley Brown. On the same date I received a resignation letter from Mr Pavelin

There is one Operating Centre at 28-30 Perry Road, Witham CM8 3YZ. Preventative Maintenance Inspections are said to be carried out by VLS at the same address at 6-weekly intervals for vehicles and 12-weekly for trailers (see below regarding traction operations).

The licence was granted from 11 November 2021, with undertakings that included the provision of financial evidence and that the Transport Manager attend a two-day CPC refresher course. The certificate supplied suggests that he only attended a one-day course (page 107 and email traffic at pages 108 to 110). The operator was put on notice of this at the aborted hearing on 4 January 2024. Mr Larke was a Director of Beckwith Contracts Ltd, which held OF1127080 until it was surrendered on 23 October 2023. Mr Pavelin was its Transport Manager.

5. Hearing

The Public Inquiry was listed for today, 16 January 2024, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Mr Larke and Mr Ellis, accompanied by Mr Brown and Mrs Jones and represented by Andrew Woolfall of Backhouse Jones solicitors. The case had originally been listed on 4 January 2024 when Mr Pavelin failed to attend. Medical evidence was apparently provided to my colleague, Deputy Traffic Commissioner Miss Thomas, on the night before. Dr Anita Ibie referred to recent onset (Redacted) pain relief. I referred to Mr Pavelin’s resignation letter of 15 January 2024 in which he refers to his continuing condition, ill-health, and discussions with the operator, leading to his resignation. He indicated that he was willing for the hearing to continue in his absence.

6. Issues

The public inquiry was called at the request of the operators and following notice that I was considering grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

• 26(1)(b) - breach of the conditions on the licence: failure to notify events which may affect the Transport Manager meeting Schedule 3.

• 26(1)(c)(iii) – prohibitions.

• 26(1)(e) – statements made when applying for the licence: vehicles would be inspected at the 6-week intervals promised; nominated Transport Manager would be responsible for vehicles on the operator’s licence; to abide by any conditions which may be imposed on the licence.

• 26(1)(f) – undertakings that: vehicles and trailers would be kept fit and serviceable; to employ an effective written driver defect reporting system; retain maintenance records for 15 months and make them available on request; to observe the rules on drivers’ hours and tachographs.

• Section 26(1)(h) – material change in the ability to hold the licence:

• Section 27(1)(a) – good repute, financial standing and a Transport Manager who meets Schedule 3.

• Section 28 – Disqualification.

Mr Pavelin was called was called separately to consider whether he exercises effective and continuous management of the transport operation and due to any potential impact to his repute as Transport Manager, under section 27(1)(b) and Schedule 3.

The operator was directed to lodge evidence in support in advance of the original hearing and by 21 December 2023 including financial, maintenance and other compliance documentation. The average sum taken from the financial evidence was short of the prescribed sum. The adjournment allowed the operator further opportunity to lodge satisfactory financial evidence which should have been received 14 days in advance of the hearing date. The average of the financial evidence produced was not sufficient to meet the prescribed sum.

7. Summary of Evidence

On 22 June 2023, vehicle registration PO64 VLF, driven by the Transport Manager, David Pavelin, was issued with an S-marked prohibition for a deep cut in tyre, with cord or cords are exposed, and tyre with damage to tread area and recut to cord (statement of Traffic Examiner Mepsted dated 26 June 2023, pages 41 to 43). This vehicle was not specified on the operator’s licence at the time, even though Mr Pavelin claimed that he was conducting duties on behalf of this operator. It was displaying an operator’s licence disc issued to this operator (1628406). It was not specified on the licence at the time, but three other vehicles were: PE64 USB, FN14 LWO and PE64 EPL. In a call, ‘Neal’ advised that PE64 USB was not being used due to mechanical issues, which is why PO64 VLF was in use. PE64 USB was removed and PO64 VLF was specified by 11.12 on that date. A Vehicle Unit download showed that PO64 VLF had been in use by driver for the last 28 days.

Vehicle Examiner, Mervyn Lockwood, conducted an unannounced maintenance investigation on 21 August 2023.  His report (pages 44 to 58) highlighted the following shortcomings:

Maintenance records:

• PO64 VLF: removed from the licence between December 2022 and June 2023 but Preventative Maintenance Inspection records showed continued use. Two Preventative Maintenance Inspection records not signed as roadworthy. One interval exceeded (12 weeks). Records for the two latest inspections were missing. Two incidents of low tyre tread not reported by driver.

• PE64 EPL: two Preventative Maintenance Inspection records not signed as roadworthy. One interval exceeded (18 weeks). No record for latest Preventative Maintenance Inspection overdue. Two incidents of low tyre tread not reported by driver.

• FN14 LWO: two Preventative Maintenance Inspection records not signed as roadworthy. Two intervals exceeded (18 and 13 weeks)

• PE64 USB: three Preventative Maintenance Inspection records not signed as roadworthy. One interval exceeded (12 weeks). One dangerous defect not marked as rectified (broken road spring).  One incorrect odometer reading.

• EG17 AMX: no first use inspection

• Preventative Maintenance Inspection records did not show who was conducting inspections. Brake performance test requirements were not being met as did not form part of the Preventative Maintenance Inspection. No brake test reports were available.

• The 2022 forward planner was not available and current planning did not extend to 6 months in advance. The planner was not updated to show records checked and filed.

• No Vehicle Off Road or safety defect/recall system.

• No Guide to Maintaining Roadworthiness available.

• The operator provides traction-only; two customer trailers were found to be in the operator’s long-term possession but swapped for servicing. Maintenance was said to be controlled by the customer, but again there was no evidence of brake performance testing, with a reference to ‘static tests’.

Driver defect reporting:

• Ineffective system. Defect books not used for customer trailers and no reports available for PE64 USB and PE64 EPL, or for one driver.

• No evidence of walk round training, Driver detectable defects found at the Preventative Maintenance Inspection. Advice given.

Wheel/tyre management:

• One broken wheel stud and one loose wheel nut found during visit.

• No documented wheel security/wheel nut retorquing system in place.

• No torque wrench available (operator used air gun & lever).  No evidence that provider’s torque wrench was calibrated.

• Operator was found to have tyre replacement policy but see the S-mark prohibition (below).

Load security:

• Little or no evidence of driver training; other than drivers’ own experience.

Prohibitions:

• Immediate prohibition issued on 22 June 2023 for damaged tyres. The re-grooved tyre was of poor workmanship which should have been apparent to the repairer and was recorded as a ‘significant failure of roadworthiness compliance’.  The driver defect report for 22 June 2023 recorded no defects. Previous Preventative Maintenance Inspection was 7,300 km prior to encounter. The operator believed that the tyre was re-cut then.

• An immediate prohibition was issued during the visit for a missing nearside mirror which had been identified on the previous driver defect report.  Delayed prohibitions were issued for fractured wheel stud and loose wheel nuts. The wheel nut and stud were noticed to be loose during the encounter and the stud then fractured when tapped. The previous PMI was 20,200km prior to the visit.

Mr Larke responded to the DVSA findings (pages 76 to 77). He claimed that PO64 VLK was rented out, but no evidence was produced. He assumed that Mr Pavelin was checking the Preventative Maintenance Inspection records. Mr Larke drives every day. The operator has disposed of PE64 USB and PE64 EPL and that any missing paperwork ‘must have been in the vehicles’. Again, all defect reports should have been checked by Mr Pavelin. It was claimed that the defects identified during the visit would have been identified by the driver later, when carrying out the walk round check. He stated that the maintenance provider has a calibrated torque wrench but that the operator had then purchased its own, which is calibrated regularly. This was later confirmed in Mr Pavelin’s letter. He claimed that drivers knew how to load and secure loads, but the operator planned to document any training.

In respect of the Prohibition Notice dated 22 June 2023, Mr Larke had spoken to the Transport Manager, who had told him that the outside of the tyre tread was acceptable. It was claimed that “it took the lady some time to find the wire on the tread, she had to get underneath the vehicle’. But this was no excuse, and the vehicle should have been roadworthy and the individual responsible for the re-groove is no longer involved with the business.” Mr Larke referred to the attendance at CPC refresher training in 2021, so Mr Larke expected Mr Pavelin to do ‘all the necessary checks on all the running of the licence’. No evidence of any proposed changes was supplied to the Vehicle Examiner. He was told that a Tina Jones had now been employed full-time to manage all the necessary paperwork. Mr Pavelin referred to another person who was supposed to be assisting but had mislaid/ thrown away documentation. That said, Mr Pavelin indicated that a William Jones (husband of Mrs Jones) had then found additional driver defect reports in his cab. An invoice in her name referring to Operator Licence Awareness Training to be delivered by the associated training arm of Backhouse Jones on 20 February 2024 and a two-day Transport Manager refresher on 7 and 8 February 2024 was produced.

Mr Pavelin was apologetic in his response (pages 78 to 80). He suggested that PO64 VKF had been removed from the licence due to an absence of work. He “was led to believe” that the vehicle could be lent out with the operator retaining responsibility for maintenance, to be put back on the licence when there was sufficient work. The reduction in authority to 3 vehicles apparently caused “confusion”. Reference was made to Tina Jones, implying that Mr Pavelin’s lack of IT skills had caused the situation, but Mr Pavelin was driving on 22 June 2023. His response dated 5 September 2023 suggested that he was having weekly meetings with Mrs Jones. He had apparently met with VLS and there was an apology that he had overlooked the declaration of roadworthiness. It was also accepted that Preventative Maintenance intervals had been extended and that centre and inner of tyres were not checked, although reference was also made to Universal Tyres. When driving on 22 June 2023 he was apparently aware that the tyre had been reported at the previous Preventative Maintenance Inspection. He was not sure but thought that Mr Larke had spoken to Universal Tyres to have it changed. Mr Pavelin had then been prompted by the DVSA visit to meet with the drivers to remind them to supply relevant documentation.

The Traffic Examiner, Ian Donaldson, visited on 31 August 2023 (pages 81 to 92). He considered 960 records for the period of April-June 2023 confirming use of 4 vehicles on 20 occasions. The operator claimed that, on occasions, Peter Ellis used a vehicle for private use as a showman. That has now changed, and he has purchased a separate vehicle The operator also claimed to be relying on the period of grace before specifying the vehicle. I could find no evidence of a first-use inspection. The operator had sold the spare and only used the three specified vehicles. Advice was required to lock in the company card. Mr Donaldson confirmed that the operator had not complied with the licence requirements prior to the stop in June 2023 but now “appears to be on top of their management duties to the Traffic Commissioner to ensure compliance of the requirements and responsibilities of those to hold a standard national operator’s Licence.” In advance of the Public Inquiry I was provided with evidence of licence checks for Drivers Ellis 30 August 2023, William Jones 31 August 2023, Mr Larke 30 August 2023, and Mr Pavelin dated August 2023; infringement summaries purporting to be for Driver Jones (but no named included, for Mr Larke and Mr Pavelin, suggesting some areas for concern, with accompanying infringement reports with occasional breaches of the Working Time Directive, apparently up to December 2023 but only one was counter-signed by Mr Pavelin and only Mr Jones was subject to formal action. There was no apparent endorsement of the missing mileage printouts.  Pages 10-45 contained copies of 8 different pages of infringements, with information duplicated multiple times.

Mr Lockwood helpfully supplied an updated assessment of the records from 23 August 2023 onwards, produced as per the Case Management Directions. He recorded that records were produced for 4 vehicles, consisting of 714 pages with an additional attachment. The 2024 wall planner showed when inspections were due. A wheel nut retorque record book and wheel nut torque wrench calibration certificate dated 7 December 2023 were included in the bundle.

The Preventative Maintenance Inspection records continue to omit details of who completed those inspections, but they were carried out on time. He observed that the operator relies on Novadata produced duplicate books for driver defect reporting, with Mr Pavelin using the books to also record his office and yard attendance:

• For PO64 VLF, Mr Lockwood recorded two Preventative Maintenance Inspections where there was no brake performance test. 69 driver defect reports were produced reports, all were Nil, bar two: i) engine and air filter warning lamp illuminated, ii) brake chamber leaking air on the trailer. Both were shown as rectified. 29 of the Nil reports included trailer identification.

• For FN14 LWO, three Preventative Maintenance Inspection records were produced where there was no brake performance test. It was presented for annual test on 22 November 2023 but the print-out was not supplied. He referred to 32 driver defect reports which were Nil bar one report advising that a tyre was getting low. 26 reports gave a trailer identification.

• For KY19 FTZ, three Preventative Maintenance Inspection reports were produced but with no brake performance test. An unladen test was conducted on 11 November 2023. 39 driver reports were supplied, all of these were nil defects and included the trailer(s) identification.

• For EG17 AMX, three Preventative Maintenance Inspection reports were produced but no brake performance tests. It was presented for annual test on 26 October 2023 but the print-out was not supplied. There was no evidence of pre-test inspection. 44 Nil driver defect reports and 33 included the trailer identification.

There had been two annual tests since his visit: 22 November 2023 when FN14 LWO passed and 26 October 2023 when EG17 AMX failed on 67. Headlamp aim, 66 Indicators & hazard lamps and 48 suspension. In advance of the hearing, I was provided with a Tyre Check Policy signed by Neal Larke W Jones, and PS Ellis, but only on 12 January 2024. I was also provided with the following brake performance results dated 6 January 2024: KY19 FTZ: 55%, 33%, 20% but 23% imbalance on the service brake of axle 2; KY19 FXT: 56%, 35%, 21% but with an imbalance on the service brake of 25% on axle 1, 36% axle 2, and 23% axle 3; and FN14 LWO: 59%, 38%, 23% but with a 20% imbalance on the parking brake of axle 1.  I was surprised to be told that these results came from an ATF.  

Mr Lockwood also referred to the agreement with RHN Consultancy Ltd, dated 19 December 2023. The Deputy Traffic Commissioner, Miss Thomas, directed on 4 January 2024, that up-to-date evidence should be obtained. I was therefore provided with a short report from Christopher Matthews dated 11 January 2024 indicating that from the raw data provided by the operator only vehicles PE64 EPL, PO64 VLF, and FN14 LWO had been operating on 22 June 2023. Mr Matthews was not apparently asked to comment on the DVSA findings from the Vehicle Unit of FN14 LWO i.e. it had been in use by driver for the last 28 days.

8. Decision

On the basis of the evidence summarised above, I was satisfied that I should make adverse decisions in respect of section 26(1)(b) - breach of the condition on the licence to notify events which may affect the Transport Manager’s management, section 26(1)(c)(iii) – prohibitions, section 26(1)(e) - statements  that vehicles would be inspected at the 6-week intervals  and that the nominated Transport Manager would exercise continuous and effective management, and to abide by the licence conditions, 26(1)(f) – breach of undertakings that: vehicles and trailers would be kept fit and serviceable; to employ an effective written driver defect reporting system; retain maintenance records for 15 months and make them available on request; to observe the rules on drivers’ hours and tachographs.

There was an obvious material change under section 26(1)(h), in that the operator no longer had a Transport Manager and the evidence was not sufficient to satisfy me as to financial standing.

The Directors were very frank in their admissions that they had failed to oversee the Transport Manager and therefore meet their responsibilities on this licence. To quote the Upper Tribunal in the appeal case of 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 Larke referred to Mr Pavelin having attended training, but that was far from enough. I referred to Mr Pavelin’s response to the Vehicle Examiner: “I did a TM refresher course for two days, so this doesn’t look very good on my part but now we have Tina in the office she will help me do all the filing etc as I’m not good at that and I will revise again to make sure that things will go forward in a safe manner.” That most helps to illustrate his approach to the DVSA findings, believing that they could be explained away as administrative matters and without reference to the requirement on him to exercise effective and continuous management. 

In his resignation letter, he accepted that there had been failings in the compliance systems but stressed that this was not deliberate. I cannot help but note that he was driving a vehicle with an out-of-date disc and had been for over the 28 days allowed without it being specified. From the findings made above, it cannot be said that this was effective or continuous management and Mr Pavelin should have been aware of the requirements, but a number were simply delegated away. He asked me in his letter not to make adverse findings against him, as he did not intend to rely on his Transport Manager qualification again, but in evidence I was told that he may return to his employment. Faced with the possibility of a future application, I recorded adverse findings against his repute under section 27(1)(b). In his absence I was unable to fix a rehabilitative measure, although the Act makes provision to apply to vary the direction which now prevents him from relying on his Certificate of Professional Competence.

In considering the question posed by the Upper Tribunal in Priority Freight namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime I had the opportunity to hear from Mr Brown and noted that Mrs Jones is also booked to attend training to strengthen the support available to the Directors. I heard about the type of work undertaken and that one trailer is supplied to the long-term possession of the operator (maintained by Dawson Group) and that others are picked up and dropped. Nevertheless, the operator must ensure that they are roadworthy during operation. The RHN Consultancy will continue to attend on at least a monthly basis. That reporting will be used to develop Key Performance Indicators for the Directors to monitor. Much will depend on establishing effective systems. Having attended a previous hearing, this is the operator’s final chance. I have marked its repute as severely tarnished. The starting point fell within the SERIOUS category, but this was mitigated down in part by the positive response to Mr Donaldson and to this Public Inquiry and the overall annual test history. Further, I accepted the following undertaking:

• All vehicles and trailers operated under this licence will undergo a laden roller brake test as part of every Preventative Maintenance Inspection. The results will be recorded, and the records will be kept for at least 15 months, with the results to comply with the current DVSA Guide to Maintaining Roadworthiness and by reference to the DVSA guide on how to read a brake test report.

I allowed a Period of Grace for two months to show financial standing as described in the Senior Traffic Commissioner’s Statutory Document No. 2 on Finance. The Period of Grace was also to allow for the processing of the application to add Mr Brown as Transport Manager and to thereby meet the requirements of section 13A(3). The genuine link and reporting process must be assessed to show compliance with paragraph 14A(1)(d) of Schedule 3. The operator was warned as to the consequences of repeated non-compliance and/or a failure to discharge the Periods of Grace.

8.1 R Turfitt

Traffic Commissioner

16 January 2024