Decision

Decision for Rutland Haulage Limited (OF2027781)

Published 8 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

The applicant company seeks a Standard National Goods Vehicle Operator’s Licence authorising operation of 12 vehicles and 12 trailers. I was told that the Applicant has 7 vehicles in possession. The application was initially received on 1 November 2019. The company has one Director, Patrick Joseph Donaghy. The proposed CPC holder then was Garry Wilkinson, with a suggested undertaking that he attends a 2-day transport manager CPC refresher course by 28th February 2020. The proposed Operating Centre is at 4 Riverside Avenue West, Lawford, Manningtree, CO11 1UN.

The applicant proposes to have vehicles and trailers inspected at 6 weekly intervals by AIW Transport Services Limited. Mr Doughty is the person with significant control of that entity and was a director until 2017.

Mr Donaghy was formerly the Director and Transport Manager of Rutland Haulage Ltd (OK1090750). That licence was called to Public Inquiry twice (in a period of five years). On the first occasion of 26th October 2016 the operator offered undertakings, so the presiding Commissioner only curtailed the licence from 12 to 9 vehicles, but on the basis of undertakings. The second Public Inquiry was heard on 26th and 28th July 2017 when the licence was revoked and Mr Donaghy was disqualified from holding or obtaining an operator’s licence for a period of two years, with effect from 30th September 2017. An appeal against that decision was later withdrawn.

This applicant made a previous application which was refused at the same Public Inquiry.

2. Hearing

This application was originally listed for hearing on 4th March 2020. The Deputy Traffic Commissioner acceded to the applicant’s request and the hearing was then adjourned to allow the nomination of Amrit Aggarwal to be considered.

Due to the pandemic it was not possible to relist it until 21st July 2020. The hearing took place in Tribunal Room 1 of the Office of the Traffic Commissioner, Cambridge. The applicant was present in the form of the Director, represented by Eliot Willis, a solicitor with NA Legal, Transport Solicitors, and accompanied by the nominated CPC holder.

Mr Willis submitted written representations a few days before the hearing, together with accompanying documentation. A proportion of the representations referred to The Senior Traffic Commissioner’s Statutory Guidance and Statutory Directions, with which I am well acquainted.

3. Issues

The hearing was called to provide opportunity to the applicant to satisfy me to the civil standard of proof that the following statutory criteria are met:

• Section 13A(2)(b) good repute
• Section 13A(2)(d) professional competence by reference to Article 4 and 7 of Regulation (EC) 1071/2009
• Section 13C(4) that there are satisfactory facilities and arrangements for maintaining the vehicles.

The financial evidence was satisfactory.

4. Determination

The applicant seeks to be involved in the processing of scrap metal and has installed a 50-tonne capacity weighbridge for lorries. It has a dealer’s licence from Tendring District Council. It has its own Scrap yard at the proposed Operating Centre. It hopes to operate up to 12 vehicles for approximately 7– 9 hours per day. The applicant intends to replace its fleet with ‘Euro 6’ vehicles and is already in negotiations.

I was satisfied by the financial evidence produced in support of the application.

Patrick Donaghy is recorded as having been appointed as Director on two occasions, once with a date of birth 13th March 1943, the other 13th March 1944. In evidence Mr Donaghy confirmed that he was born in 1944 but that his driver’s licence is incorrect. He has only just taken steps to address this unlawful situation. Those steps equate to delegating contact with DVLA to his secretary. He has done nothing to correct the erroneous Companies House entries. He should be aware that checks will be carried out before any final decision can be reached.

This is apparently his first involvement with an application following the expiry of the disqualification period. The expiry of that disqualification does not mean that I can or should simply ignore his previous conduct. It goes directly to the question of repute. I was told in representations that the company does not seek to dismiss Mr Donaghy’s past and now wishes to move on. I was given assurances that it would work closely with a Transport Manager to ensure compliance. I include extracts from the Deputy Traffic Commissioner’s decision. They clearly indicate Mr Baker’s view of his past conduct.

29 . Mr Donaghy gave evidence and said that what Ms. Wright had said in evidence had not been true. Tyre checks were being done and she had seen other preventative actions being undertaken herself. Preventative inspections were being done properly took about 30 minutes to an hour so the number being undertaken in a day was not a problem. He had been under pressure to leave the site in London. Had relied on other people to deal with compliance matters and they had not done it. He had never blocked either of the transport managers from doing anything that was required. None of the transport managers had been successful in their roles. The reason that only half of the vehicles were brought to the yard for brake testing on the 17 June was because he had not got enough drivers available to bring them all. He denied shouting at the driver who drove the vehicle to Doncaster and the vehicles that failed the brake tests subsequently passed the MOT test without changes being made.

38 . In deciding this case I first have to determine who version of events I accept. Ms Wright says that she set up various systems and gave deadlines for these to be done. When the improvements she said were required were not made she says she resigned and gave her reasons for this. Mr Farrer put forward a similar picture for his period in office as transport manager culminating in the brake testing of 17 June and the use the vehicle on the 18 June 2017. He said that the actions he required to be taken were blocked by the operator or those working for him. Mr Donaghy and Mr Nasui on the other hand said that things were being done as they should be, brake testing was taking place and maintenance inspections being undertaken fully and regularly. As an alternative Mr Donaghy in particular said that if things were not done as they should be this was the fault of the transport managers who had not been successful in thei roles. He had been distracted by the move of operating centre and had been let down.

39 . In deciding whose version of events to believe I place weight on the content of the audit prepared by Mr Gibbs. The content was challenged to a limited extend in the written submissions submitted by Ms Evans but the bulk of the findings were not disputed in any substantial way by the operator and yet it revealed broadly the same failings that had been identified by both transport managers. Whilst Mr Nasui indicated that he did not accept particular parts of the report no contradictory written evidence was produced. On the contrary the files that were shown to me at the inquiry revealed missed inspection dates and an absence of any driver’s hours infringement reports for the periods between January and July 2017. When this put to the operators time allowed for consideration it was accepted that there were none and a submissions made that instead that Mr Farrer should have been doing this work as he was paid as transport manager for some of this period.

41 . I did not find the evidence presented by Mr Donaghy and Mr Nasui credible. They did not present cogent evidence to dispute the claims by Ms Wright or Mr Farrer and the findings of the auditor and where fault was undeniable Mr Donaghy attempted to shift the blame away to others. When Ms Wright was transport manager there is no evidence to show that Mr Donaghy did what she was asking to meet compliance requirements. Even if Mr Farrar was acting as full transport manager from March, which I do not find, there is no evidence to show that Mr Donaghy was pressing him for evidence that he was fulfilling the functions of the role as required. The reality was that no-one was overseeing the transport operations properly and no tachograph analysis was being undertaken, maintenance inspections were neither timely nor effective and the driver walk around checks were not fully effective. This conclusion is corroborated by the content of the audit, the prohibitions that were issued during the period and the documents presented to me at the public inquiry.

The Deputy Traffic Commissioner’s decision was not appealed and stands as a matter of record. It did not help this application that Mr Donaghy continued to deny responsibility for the matters identified by Mr Baker. He also repeated his attempts to blame others.

Mr Donaghy completed a 1-day virtual OLAT course on 9 July 2020 after his course on 17 March 2020 was cancelled.

The applicant is a member of a recognised trade association, which will undertake tachograph analysis. I am told that infringements will be discussed with the drivers, with follow up training, as required and/or disciplinary action.

I was provided with copies of a large amount of proposed policies and procedures, within the driver’s handbook covering the maintenance, inspection and operation of vehicles including load safety and tyre management. I have noted the references to driver training, standards, and discipline

I am told that the applicant has signed a contract with its ‘external’ maintenance provider. There is a commitment, to rolling road brake tests at every Preventative Maintenance Inspection. The nominated CPC holder assured me that he had viewed the facilities and that recognised FTA inspection forms would be utilised. That will be the subject of checks. The AIW workshop is apparently adjacent to the applicant’s site. Mr Aggarwal has recognised that maintenance provided by another entity for which Mr Donaghy is a person of significant control, may not be particularly reassuring. In the course of the hearing, I was provided with a contract with Anstone Commercials. The CPC holder proposes to alternate between the two contractors, as a check of standards. That too will be the subject of the audit.

There is a further commitment to Nil driver defect reporting. It relies on standard duplicate book reporting. I was assured as to the Transport Manager’s role in managing this part of compliance. He has committed to two days a week with this applicant.

All of those compliance systems rely on effective management. Mr Donaghy has failed to live up to the trust placed in him to properly manage compliance in the past. It was suggested that the nomination of a new CPC holder might offer sufficient assurance and yet Mr Donaghy has clearly overridden the instructions of two other CPC holders in the past.

The application was previously adjourned by a Deputy Traffic Commissioner to allow for the nomination of Mr Amrit Aggarwal to be considered. Neither Mr Donaghy nor Mr Aggarwal could identify who introduced them beyond ‘Nasir’. The contract satisfies me as to the genuine link. His duties should reflect paragraph 54 of Statutory Document No. 3. It has been very clear to him that were he to find himself overridden in matters of compliance, he would have limited options but to resign or face action against his repute. He is currently meeting the duties on three other licences, but he qualified in 2011. It was necessary for me to update his knowledge in respect of brake testing. He would be well advised to consult the DVSA Guidance: Heavy vehicle brake test: best practice. He is now booked on a 2-day Transport Manager Refresher Course with the Road Haulage Association on 4 and 5 August 2020. That too will need to be checked.

In representations I was offered the prospect of a full compliance audit, the engagement of a transport consultant and driver training. The latter is an integral part of compliance. These were not sufficient to satisfy me that the statutory criteria are met. Following the expiry of the disqualification period and attendance at training there may be prima facie evidence of repute, but I remain to be satisfied that this translates to Director fitness to oversee an Operator’s Licence. Director fitness is an essential element in determining the company’s repute. On the company’s application under section 24(6) I was persuaded to grant interim authority for no longer than 6 months, after which the interim licence ceases to have effect. In that time the operator must lodge with the Office of the Traffic Commissioner a copy of that audit, which I understand will be completed by a recognised trade association. That must confirm full compliance before I will allow substantive grant.

RT/TC/21/7/20