Decision for Ronald Connors regarding the impounding of a vehicle.
Published 28 April 2021
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0.1 IN THE WELSH TRAFFIC AREA
1. PUBLIC INQUIRY
1.1 In respect of the application by RONALD CONNORS
1.2 For the return of
1.3 VEHICLE REGISTRATION : HX54 HXU
1.4 under the Goods Vehicles (Licensing of Operators) Act 1995 (amended by the Transport Act 2000) (“the Act”) and The Goods Vehicle (Enforcement Powers) Regulations 2001 and The Goods Vehicle (Enforcement Powers) (Amendment) Regulations 2009 (“the Regulations”)
BEFORE
1.5 ANTHONY SECULER
1.6 DEPUTY TRAFFIC COMMISSIONER
HEARD VIA MICROSOFT TEAMS
ON
24th MARCH 2021
2. Background
Ronald Connors, (“the applicant”) previously held an operator’s licence as a director of Keyline Paving Limited, on which the vehicle in question, HX54 HXU, was specified. On 12th May 2012, the Keyline licence was revoked.
On 4th September 2020. the vehicle was seen by Traffic Examiner Anthony Mark Lewis in the vicinity of the applicant’s home address at Rembrandt Way, Newport.
TE Lewis spoke to the applicant who stated that the vehicle was used for his private use.
On 6th November 2020, a pre-impounding warning letter was sent to the applicant.
A number of dates were agreed between DVSA and police to check for the vehicle on the public road. No observations of the vehicle were made.
On Saturday 30th January 2021, TE Lewis received a report from the South Wales Police to say that the vehicle was being loaded with hardcore from the driveways of two properties at Chepstow Road, Newport. The applicant told the officer that he had not been working and that the hardcore was being collected for private use on his land.
The applicant was directed to take the vehicle to the DVLA Enforcement site at Coldra, Newport, where following checks by TE Lewis and the authorisation of a senior examiner, the vehicle was impounded.
On 10th February 2021 the applicant attended at the Coldra site seeking the return of the vehicle in question. TE Lewis regarded the applicant’s attitude and conduct as intimidating. He was asked to leave the site.
Following statutory notice of detention on the 5th February 2021, the applicant applied on the 25th February for the return of the vehicle.
The ground relied on under Regulation 4(b) of the 2001 Regulations was, that at the time the vehicle was detained, the vehicle was not being used in contravention of section 2 of the 1995 Act.
3. The Public Inquiry
At the Public Inquiry, the applicant attended via virtual link, represented by Mr Ed Mitchard, Solicitor.
DVSA attended as respondents through TE Lewis, via virtual link.
Evidence was heard from TE Lewis and the applicant, and representations were made by Mr Mitchard at the conclusion of the hearing.
4. Findings and Considerations
Ownership of the vehicle was accepted by TE Lewis and I find that the applicant was the owner of the vehicle and entitled to make the application.
On the 30th January 2021 the vehicle was seen being loaded with hardcore from residential properties which the applicant’s son appeared to be working on. No operator’s licence was in force.
On the basis of the history, the observation, and in the absence of submissions to the contrary, I find that DVSA had “reason to believe” that the vehicle was being used contrary to section 2 of the Act.
The applicant was clear in his evidence that the hardcore was not being loaded “for or in connection with any trade or business carried on by him” under Section 2(1)(b) of the Act.
There was no evidence that the vehicle was being used for the carriage of goods “for hire or reward” under section 2(1)(a) of the Act.
Whilst reference was made to “signwriting” and the vehicle bearing the “livery of “Block Paving – Paving your way”, the respondent accepted that signage had been removed from the body of the vehicle and that the “livery” was only on a sun visor and orange warning light.
On the dates when DVSA and police arranged checks for the vehicle in question on the public highway no observations were made of the vehicle. Whilst TE Lewis stated that of the 5 dates, some were over the Xmas period and on another, PC Prosser was called away on other matters, it was the respondent who agreed the number and timing of the checks.
I have regard to the fact that these proceedings are adversarial in nature and that the respondent made no challenge to the evidence of the applicant. The only questions asked by the respondent were in respect of the applicant’s future intentions regarding applying for an operator’s licence if he decided to re-commence trading.
The applicant’s evidence that his son had offered him the hardcore free of charge for making up the roadway on his private land was, consistent with the explanations given to the police and DVSA at the time, credible and unchallenged.
The applicant’s explanation of the parking up of the truck for a number of years and its recent use to load hay for horses and hardcore for groundworks on his land was, again, credible and unchallenged.
In the circumstances the applicant has satisfied me that the vehicle was not being used in contravention of section 2(1) of the Act and he is entitled to the return of the vehicle.
5. Decision
On finding that vehicle HX54 HXU was not used in contravention of section 2 of the Act on 30th January 2021, the vehicle is returned to the applicant, Ronald Connors.
Anthony Seculer,
Deputy Traffic Commissioner,
25th March 2021