Decision

Decision for Robert James Brown t/a RB Industrial Roofing (OF2050816)

Published 24 August 2023

0.1 In the Eastern Traffic Area

1. Traffic Commissioner’s Confirmation of Decision

1.1 Robert James Brown t/a RB Industrial Roofing (OF2050816)

2. Background

Robert James Brown holds a Restricted Goods Vehicle Operator’s Licence authorising 2 vehicles only.

There is one Operating Centre at The Stables Yard, High Road, Saddlebow, King’s Lynn PE34 3AR. Preventative Maintenance Inspections are said to be carried out by RB Truck Ltd, at the same address, at 6-weekly intervals.

Information has been received from DVSA that the authorised Operating Centre was not being used. The operator suggested to the Vehicle Examiner that he was preparing an application to use Docherty Roofing and Cladding, Hardwick Narrows Industrial Estate, Kings Lynn PE30 4NG, but no application appeared to have been made.

3. Hearing

The Public Inquiry was listed for today, 27th April 2023, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was not present.

4. Issues

The public inquiry was called for me to determine whether there were 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)(a) – not using the authorised operating centre.

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

• 26(1)(c)(iii) – prohibition.

• 26(1)(e) – statements that relevant vehicles would normally be kept (when not in use) at the operating centre at The Stables Yard, High Road, Saddlebow, PE34 3AR; and to abide by conditions on the licence.

• 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records)

• 26(1)(h) – material change; fitness and finance.

• 28 – Disqualification.

The operator was directed to lodge evidence in support by 13 April 2023, including financial, maintenance and other compliance documentation. A further chase was sent by email on 18 April 2023. The operator failed to comply.

5. Determination

Vehicle DX54 CDZ was stopped on 27 July 2022, whilst being driven by an Ashley Overson. Driver Overson indicated that he was acting under the instructions of this operator. The vehicle was not specified on the operator’s licence at that time.

A Prohibition Notice was issued due to the condition of the tyres, which were found to be worn with cords exposed. The vehicle was also fitted with the wrong size of tachograph. As a consequence, there was an alleged failure to make a driver record.

Vehicle Examiner, Paul Barley, and Traffic Examiner, Hannah Prem, conducted a joint visit with the operator on 26 September 2022. As suggested above, the assessment took place at an alternative site to the authorised Operating Centre, where the operator stated he was working from. The Traffic Examiner refers to a yard belonging to another roofing company, and that there may be sufficient capacity. The operator confirmed to them that he was no longer using the authorised site, having been given notice to quit. He suggested that this was at short notice and that he may have been the victim of fraud. He suggested that he would submit an application for the new site.

The Examiners also identified the following areas of concern:

• Inspection/Maintenance records: incorrect trading name recorded, failure to carry our brake performance testing in line with published guidance, no evidence of a forward planning system/Vehicle Off-Road system, or a safety defect and recall system.

• The notified maintenance contractor is not used, with no contract produced or evidence of facilities.

• Weak driver defect reporting system: Nil daily returns but rectification not recorded.

• Vehicle emissions only checked at annual test and only a visual check on exhaust smoke.

• No documented systems for wheel security and tyre management.

• No documented systems to ensure load security or training.

• No evidence of driver licence and document checks.

• No documented driver training beyond induction.

• Drivers’ hours/ record keeping: no effective planning or keeping of records or data, with no infringements reporting.

• Working time directive: no effective systems for management or recording

The Examiners therefore questioned the ability of the operator to manage compliance.

The operator provided a response to those findings following further explanation from Mr Barley. The communication of 31 October 2022 referred to a point-by-point plan for addressing each of the shortcomings and accepted that his performance had fallen below the standard expected. He committed to recruiting a ‘Transport Manager’ and to completing training. The Deputy Traffic Commissioner was concerned that the operator appeared to be non-compliant across a range of areas and as to the operator’s ability to ensure future compliance. He therefore determined that it was necessary to call the operator to this Public Inquiry.

On 25 April 2023 my office received a telephone call from the operator advising that he had tested positive for Covid and that he had been feeling unwell since an accident approximately four weeks before, which had required surgery. He indicated in advance that he would be unable to attend the Public Inquiry, either in person or virtually. He suggested that he had work commitments in May and June and would not be able to accommodate attendance until after that. He was asked to put his application in writing, which he duly did on 26 April 2023. He referred to a postponement following an injury on a building site (a traumatic hand injury) and current illness. He expressed deep regret and that he had been advised to avoid any stressful or strenuous activity but then referred to planned commitments which would take him out of the country to the end of June. He suggested that he might bring medical evidence to the next hearing but failed to address why no documentation had been lodged, as per my Directions (above).

I found it necessary to advise the operator of the approach described by the appellate tribunal in 2012/005 AND Haulage Ltd, where it declined to criticise a traffic commissioner for suspending a licence pending receipt of appropriate financial evidence. The Upper Tribunal observed that this type of order might be a “powerful spur to rapid action on the part of an operator who may, up to that point, have appeared to be dragging his or her feet. We can also see how it can provide a measure of protection to the public in cases where it appears, on paper, that there are real concerns as to road safety”. I put him on notice that I would consider whether (i) is it necessary to compel the party to do something? (ii) is the threat to road safety so serious that suspension pending action on the part of the party is essential? (iii) is suspension to prompt the party to do something proportionate to the situation? I referred to his failure to comply with Directions, with documentation requested in the letter of 23 March 2023 and due by 13 April 2023, and requested evidence of the injury and surgery. I required an explanation of why he could not attend by videolink and referred to the relevant date of 27 July 2022, the serious shortcomings alleged by the DVSA Traffic Examiner and Vehicle Examiner following their visit on 26 September 2022, the outstanding issues regarding the Operating Centre, and to address the obvious safety concerns. The operator had promised to address these in correspondence dated 20 October 2022.

The operator again attempted to avoid the Public Inquiry but failed to address the outstanding information. As he clearly had access to a computer and email address, I suggested that he might renew his application via videolink at the given time when I might review the provision of documents. He declined even to renew his application via videolink and has still not offered an explanation for his failure to provide documentary evidence of his safety systems or the availability of finance to support safe maintenance. Given the operator’s failure to comply with Directions and to respond promptly to the previous concerns, or to even take up the opportunity to pursue his application for an adjournment, I concluded that this was a deliberate attempt to avoid scrutiny.

In the absence of any evidence to the contrary, I made adverse findings under sections: 26(1)(a) – not using the authorised operating centre, (b) – condition to notify relevant changes which impact the ability to hold an operator’s licence, (c)(iii) – prohibition, (e) – statements not met: that relevant vehicles would normally be kept (when not in use) at the operating centre at The Stables Yard, High Road, Saddlebow, PE34 3AR; and to abide by conditions on the licence, (f) breach of undertakings that the vehicle would be kept fit and serviceable, to employ effective written driver defect reporting, to retain complete maintenance records for 15 months, in addition I recorded that drivers’ hours rules and tachograph requirements had not been met. In the absence of the required financial evidence, I recorded that material change under section 26(1)(h). I referred to the appellate tribunal decision in 2013/007 Redsky Wholesalers Ltd confirming the applicability of the question in 2009/225 Priority Freight, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? I concluded that this was highly unlikely and that the licence should be revoked from 23:45 on 4 May 2023, to allow this decision to be communicated. I have not disqualified the operator, having given limited credit for the absence of previous proceedings.

R Turfitt

Traffic Commissioner

27 April 2023