Decision

Decision for Redline Trackdays Ltd (OB2029551) and Former Transport Manager, Mark Spiby

Published 6 April 2023

0.1 In the North Eastern Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Redline Trackdays Ltd (OB2029551) and Former Transport Manager, Mark Spiby

2. Background

Redline Trackdays Ltd holds a Standard International Operator’s Licence OB2029551, granted in February 2020. The sole director of the Company is Dean Pearce. The Transport Manager from February 2020 to June 2022 was Mark Spiby. Since 10 February 2023 the Transport Manager has been Larisa Stir.

The licence was originally granted for two vehicles and two trailers, although subsequent variation applications increased that to three vehicles and three trailers (December 2020), thereafter to five vehicles and five trailers (August 2021) and seven vehicles and seven trailers (September 2021), before being reduced at the request of the Operator to five vehicles and five trailers where it currently remains.

The original Operating Centre was in Stockton on Tees. The Operator applied in May 2022 to add an Operating Centre in Barnsley but the advertisement eventually provided was for the centre in Stockton on Tees and the application therefore could not be accepted. A new application for the Barnsley Operating Centre was submitted on 9 July 2022 and was granted on 24 August 2022.

On 22 April 2022 the Operator’s vehicle WK13CWF was stopped by DVSA and issued with a prohibition for a defective shock absorber. The trailer attached to the tractor unit was issued with an S-marked prohibition (denoting a serious failure in maintenance) for a deep cut in an offside trye and for the fact that none of the 28 pallets being carried was secured. The driver was issued with a £100 fixed penalty.

DVSA Vehicle Examiner Mark Sherrod visited the Operator on 7 July 2022. He found that:

• the authorised Operating Centre in Stockton on Tees was no longer in use, the Operator having moved to the premises in Barnsley in December 2021;

• Transport Manager Mark Spiby had resigned in June 2022 and the Operator no longer had a Transport Manager;

• only a few preventative maintenance inspection (PMI) reports could be produced. Most records had been emailed to the Operator by the maintenance provider but no physical reports had been retained; there were extended intervals between some of the PMIs;

• no brake testing of any kind was being carried out, other than at MOT;

• driver reportable defects were present on many of the preventative maintenance inspection reports which did exist: a tyre with a tread depth of 1mm for example, which had not been identified by the driver in his defect report.

An investigation by a Traffic Examiner in October 2022 reported a “mostly satisfactory” outcome, although some shortcomings were identified with the systems for monitoring driver CPC, checking driver entitlement and checking tachograph downloads. The Operator failed to respond to this report, although a reply was required within 14 days.

The Operator asked for and was given a period of grace in which to find a new transport Manager. Various candidates were proposed at various times and the Period of Grace was extended several times. At one stage the licence was revoked after the Period of Grace terminated without a Transport Manager nomination having been received. The licence was subsequently reinstated after the Traffic Commissioner was told that there had been a death in the director’s family. Eventually Larisa Stir was nominated on 11 January 2023 and she was accepted on to the licence on 10 February.

3. Public inquiry

3.1 Call-up

In the light of these reports, the company was called to a Public Inquiry. The call-up letter was sent on 26 January 2023, citing Section 26(1)(a), (b), (c)(iii), (ca), (e), (f) and (h) and Section 27(1)(a) and (b) of the 1995 Act. Former Transport Manager Mark Spiby was also called to the inquiry to consider his good repute, as there were concerns that he had not been exercising the required continuous and effective management of the licence.

3.2 Operator records

The operator sent maintenance and drivers’ hours records in advance of the inquiry. I noted the following issues:

• Intervals between PMIs were still sometimes being extended beyond the stated 8 weeks, even since the DVSA’s visit in July 2022. There was a 12 week interval between inspections dated 13 August 2022 and 5 November 2022 for vehicle WK13CWF. There was another 12 week interval between inspections dated 30 May 2022 and 26 August 2022 for vehicle WK13CWD. [There was another apparent gap of 14 weeks in inspections for the same vehicle between 7 October 2022 and 18 January 2023 but the Operator subsequently at the inquiry found another record from 11 November 2022 in its system];

• The PMI sheets were still failing to record any form of brake test: the only brake test records were the brake tests carried out at MOT (with WK13CWF also having a voluntary brake test the day before its MOT);

• Driver detectable defects continued to be an issue on PMI sheets (i.e. defects such as broken lights or malfunctioning windscreen washers which should be picked up by drivers on their daily walk-round checks rather than only be detected at the next 8-week inspection);

• Driver infringement reports had all been printed out and signed for by drivers on 10 February 2023, two weeks before the inquiry, although the infringements identified went back as far as June 2022. Some drivers had committed numerous infringements and did not appear to be improving.

3.3 Ex-transport manager records

Mark Spiby sent a submission and some records in advance of the inquiry. He stated that shortly after the licence had been granted in February 2020, Covid had struck and the Company had ceased operations (it carried motorcycles to track day events in Europe). He had been told by Dean Pearce in December 2020 that the Company had found work with Amazon and was increasing its fleet. He had advised Mr Pearce that he needed to see tachograph and maintenance records. He had not received them but assumed that the Company had become inactive again with the new lockdown imposed in January 2021. He had been surprised when in May 2022 Mr Pearce had informed him that a driver had been stopped and fined for an insecure load and that DVSA were wanting to visit. Mr Spiby supplied copies of various texts and emails between him and the Company. I noted that although he had made several requests at various times to see records, it was clear that none had ever been produced to him. The tone of the emails suggested to me that Mr Spiby saw himself as a kind of adviser to the Company rather than as a Transport Manager who was supposed to be exercising continuous and effective management.

3.4 Public inquiry

The Public Inquiry took place in Leeds on 2 March 2023. Present for the Operator were director Dean Pearce, operations director Mr Newbert and new Transport Manager Larisa Stir. Former Transport Manager Mark Spiby also attended.

3.5 Evidence of Mark Spiby

Mr Spiby confirmed the statements in his submission. He added that, as well as not ever receiving the requested maintenance documentation he had never received a login for Tachomaster either and so had not been able to oversee drivers’ hours compliance. In June 2022, as the DVSA visit was approaching, he had sought advice from another Transport Manager and had been advised to resign from the licence as the Operator was not co-operating. I asked how many times Mr Spiby had visited the Operator’s premises and was told none.

3.6 Evidence of Dean Pearce

Mr Pearce said that, with the problems of Covid and [REDACTED], he had simply lost sight of the need to apply to use the new Operating Centre in Barnsley. There had also been a chaotic track event in Qatar, with many bikes marooned at sea, which had engaged his attention for some time. He had no satisfactory explanation as to why he had not involved the Transport Manager Mr Spiby more and indeed had entirely failed to share maintenance and drivers’ hours records with him.

I drew Mr Pearce’s attention to his response to the DVSA maintenance investigation in which he had said that he had told his maintenance provider to carry out brake testing at each PMI. I asked Mr Pearce why, even today, vehicles were not being brake tested at inspections. Mr Pearce said that he had told the maintenance provider to do them and had assumed that they were being done. He had not looked at the PMI reports closely enough to realise that this was not the case. [At the conclusion of the inquiry Mr Pearce told me that he had now phoned his maintenance provider who had

replied that as brake tests were not a legal requirement he had not carried any out (!)].

I observed again that if the Transport Manager had actually been involved, he might have picked up on the fact that, despite the promise to DVSA, brake tests were still not being done.

Mr Pearce said that he had been downloading data from the vehicle units but had not known what to do with it. Drivers cards had also been downloaded but no infringement reports generated until February 2023. He had occasionally spoken to drivers.

3.7 Conclusion

Mr Newbert stated that the Company had never had any intention to cut corners. They had now found a good Transport Manager who lived locally and was present at the Operating Centre. She had introduced new systems. The Operator had given up the Amazon work and had reverted to taking motorbikes to track-day events on the continent.

Mr Spiby said that this had been his first licence as a newly-qualified Transport Manager. He had learnt from his experience and had put better procedures in place for the new licence on which he was acting (he provided evidence of this). He apologised for what had happened.

4. Findings

After considering the evidence, I make the following findings:

• the Company has used an unauthorised Operating Centre (Section 26(1)(a) of the 1995 Act refers. The Company moved to the Barnsley Operating Centre in December 2021 but only submitted an (abortive) application in May 2022, after the April 2022 stop by DVSA. A valid application was not submitted until 9 July 2022;

• the Company has failed to fulfil the statement, made on application, that vehicles would be given a safety inspection every eight weeks. There have been some significant gaps in that schedule (Section 26(1)(e) refers);

• the Company has failed to fulfil its undertaking to keep vehicles fit and serviceable (Section 26(1)(f) refers). The MOT failure rate is 33%, against a national average of 14%. Brakes have not been regularly tested as they should have been;

• the Company has failed to fulfil its undertaking that drivers would report defects in writing. Drivers have regularly failed to report obvious defects with the vehicles;

• the Company has failed to fulfil its undertaking to ensure the lawful driving of vehicles. A vehicle was driven loaded with pallets of lead acid batteries which were entirely unsecured;

• the Company has failed to fulfil its undertaking to ensure that rules relating to drivers’ hours and tachographs were observed. Until February 2023 no effective analysis of tachograph data was carried out and missing mileage reports were not run. The analysis which was recently carried out shows that drivers are committing numerous infringements of the drivers’ hours and working time rules, with little evidence of improvement over time (not surprising, as the infringements were not being brought to their attention);

• former Transport Manager Mark Spiby has failed to exercise the required continuous and effective management of the transport activities of the business. I find that the Company failed to co-operate with his requests to see records and to be given a login to the tachograph software. The Company was content to employ a “name only” Transport Manager. Mr Spiby failed to push back on this and failed ever to visit the Operating Centre. He seems to have accepted his detached and impotent role for over two years, until he belatedly resigned. In the meantime, substantial operations were taking place. Because of his failure to exercise his duties and responsibilities over an extended period of time, I find that Mr Spiby is not of good repute as a Transport Manager (Paragraph 1 of Schedule 3 and Section 27(1)(b) of the 1995 Act refers).

4.1 Balancing act

I carried out a balancing act. On the negative side were the above findings. I attach particular weight to the absence of a functioning Transport Manager for more than two years, the S-marked prohibition for the lack of load restraint, the failure to oversee drivers’ hours and the failure to arrange for brake tests to be carried out, even after the Company had promised DVSA it would do this.

On the more positive side, I noted the “mostly satisfactory” Traffic Examiner report (although this is tinged with the negative that in reality the picture was not satisfactory); the fact that PMI reports are now available (not the case when the Vehicle Examiner visited in July 2022); the appointment within the last month of a new and seemingly competent Transport Manager. I also took into consideration the disruption caused by Covid and the effect on Mr Pearce of his father’s illness and subsequent passing away.

4.2 Conclusions

I conclude that the negatives significantly outweigh the positives. Although I sympathise with Mr Pearce’s family situation which might have distracted him from focusing sufficient attention on compliance, I note that compliance would not have been a problem had he taken the trouble to provide his Transport Manager with records and access and involve him in the business. But for whatever reason he did not make use of Mr Spiby and, despite Mr Spiby’s requests, failed to give him the access to the business he needed in order to be able to do his job. This was not the act of an Operator of good repute: I therefore conclude that the Operator’s good repute is lost (Section 27(1)(a) of the 1995 Act refers).

I conclude that Mr Pearce embarked upon o-licensing in 2020 with little or no idea of what was involved and took no trouble to find out. He failed to involve the one person who could have helped him – the Transport Manager. Despite receiving the DVSA’s adverse report, Mr Pearce took no effective action to address the main shortcomings in the report – e.g., absence of brake tests, extended intervals between PMIs, poor quality driver defect reporting. It is not enough to tell people to do things: he should have checked that those things were being done, especially when there was strong evidence that the instructions were not being followed.

4.3 Priority Freight and Bryan Haulage questions

I asked myself the Priority Freight question of how likely I considered it to be that the Company would comply in the future. The answer, as matters stand today, is “unlikely”. Dean Pearce has shown his failure to put into practice the assurances he gave DVSA after their investigation in July 2022 that I cannot rely on his assurances this time. Brake testing is still non-existent; drivers’ hours are still a mess.

A negative answer to the Priority Freight question tends to suggest an affirmative answer to the Bryan Haulage question of whether a Company deserves to go out of business. Because the Company operated for so long without a Transport Manager, and resisted his (admittedly half-hearted) attempts to see records and obtain a login, I believe that it does. The consequence of a lack of a functioning Transport Manager (a conscious act by the Company) was widespread non-compliance and a danger to other road users posed by vehicles whose brakes were not being tested and at least one of which carried a wholly unsecured load. As well posing a danger to road safety, the Company has competed unfairly against Operators which have had a functioning Transport Manager in place and which have carried out regular brake tests on vehicles and ensured their drivers’ compliance with drivers’ hours rules.

5. Decisions

5.1 Operator licence

Having found that the shortcomings significantly outweigh the positives and having answered the Priority Freight question in the negative and the Bryan Haulage question in the affirmative I am revoking the Operator licence pursuant to 26(1)(a), (c)(iii), (e), (f) and (h) and Section 27(1)(a) and (b) of the 1995 Act. The revocation will take effect at 0001 hours on 15 April 2023.

5.2 Disqualification

I also considered whether to disqualify Mr Pearce from holding or obtaining an Operator’s licence and from being the director of any Company holding or obtaining such a licence. In the end I (just) refrain from doing so. But if Mr Pearce wishes to apply to re-enter the industry he must first attend an Operator Licence Management course and convince a Traffic Commissioner that next time round he will have the knowledge, determination and drive to oversee a compliant business.

5.3 Transport manager – loss of good repute and disqualification

I have found that Mark Spiby is not of good repute as a Transport Manager, because he failed to act as such on this licence. The result was that substantial operations continued entirely without the supervision of a professionally competent person. The finding is not a comment on Mr Spiby’s personal integrity: indeed I was impressed by his honesty at the inquiry and by his keenness to learn from his mistakes. Although his first experience as a Transport Manager has been a mis-step, I am sure that he will learn from this and not repeat the same mistake again.

Having removed Mr Spiby’s repute as a Transport Manager pursuant to paragraph 1 of Schedule 3 to the 1995 Act, I must also disqualify him under paragraph 16 of that Schedule from acting as a Transport Manager on any licence. I do so for the minimum period of 12 months, until 3 March 2024. If Mr Spiby wishes at the end of that period to apply to be a Transport Manager again, he should first attend a two-day Transport Manager CPC course.

Nicholas Denton

Deputy Traffic Commissioner

3 March 2023