Decision

Decision for SPS Groundworks & Building Ltd (OF2029067)

Published 26 October 2020

In the Eastern Traffic Area.

Written confirmation of the Traffic Commissioner’s decision.

1. Background

SPS Groundworks Ltd has applied for a Restricted Goods Vehicle Operator’s Licence authorising 2 vehicles and 2 trailers. The Directors are listed as Steven Paul Smith and Adele Smith on the application. I was confused to see reference to Shay Smith being an ‘owner’ in the representations. The application proposed the use of Unit 1 Wrask Farm, Desford Road, Newbold Verdon, Leicester LE9 9LG as an Operating Centre and that AW Mechanical Services will inspect vehicles at 6 weekly intervals. That has apparently changed. On 21 July 20120 the OTC was sent a copy of a maintenance agreement with Guest Truck and Van Leicester dated 20 July 2020.

2. Hearing

The Public Inquiry was originally listed for 27 July 2020 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Steven Smith, accompanied by Shay Smith, represented by Ms Laura Newton of Smith Bowyer Clarke, instructed by Mrs Lucy Whitaker, a solicitor, of Pragma Law.

3. Issues

The public inquiry was called to allow the applicant opportunity to satisfy me to the civil standard of proof that it meets the following requirements under the Goods Vehicle (Licensing of Operators) Act 1995:

• section 13(B) – fitness as a result of activities and convictions
• section 13(C)(2) – arrangements for drivers’ hours compliance
• section 13(C)(3) – arrangements for safe loading
• section 13(C)(4) – facilities to ensure that vehicles are fit and serviceable
• section 13(D) – available finance to support the maintenance of vehicles.

4. Summary of Evidence

Steven Paul Smith and Adele Smith previously held standard national licence OF1014710 as a partnership (trading as Groundworks & Building Contracts). That licence was granted on 27 January 2003 and was authorised for 3 vehicles. Robert Smith was initially nominated as the Transport Manager. This was confirmed in the checklist dated 12 October 2007.

The Operator notified a change in address in a letter dated 8 September 2010. The letter was in the name of this applicant company. They were advised that they needed to make this application. Assurances were received that the correct entity was still operating. The OTC did not pursue the issue further.

However, the checklist completed by Steven Smith on 5 December 2012 failed to record a transport manager. A proposal to revoke letter was sent on 15 March 2014. As no response was received, that licence was revoked on 16 April 2014. It emerged that this applicant company was incorporated on 18 January 2008. This was when Shay Smith acquired 50% of the shareholding.

DVSA commenced inquiries in the latter months of 2019. Photographic evidence at page 44 shows one of the nominated vehicles parked on the pavement outside the home address of an applicant Director. DVSA put Steve Smith on notice of the risk of impounding in a letter dated 26 November 2019 (page 40). The reply from Mr Smith (page 46) acknowledged ownership of the vehicle and indicated that this entity had applied for an operator licence.

The application was submitted on 3 December 2019. The applicant was put on notice that I remained to be satisfied that the statutory criteria were met, under cover of a letter dated 23 January 2020, and the applicant requested a Public Inquiry.

Mrs Whitaker supplied a bundle of documents in advance of the hearing. That included invoices for deliveries in July 2020 and receipts for transport activities from other operators from January 2020 onwards. It also referred to an OLAT booking for Steve Smith/Shay Smith 5 August 2020.

In the covering letter she explains that the applicant now proposes to use Guest Truck & Van. Attempts to change the application on-line have not been successful. The contract was due to be produced and was attached to the emailed letter of 21 July 2020.

The proposed vehicle is not over 7500kg GVW or part of a combination of vehicles of that weight. It will be used to carry materials equipment and machinery for the driver’s use in the course of his work within a 100 km radius of base and where driving is not the driver’s main activity. The applicant therefore proposes to rely on weekly working timesheets. I am told that pads have been ordered.

As the only two drivers will be Mr Steve Smith and Mr Shay Smith, it is suggested that disciplinary procedures would not be appropriate. I was unclear which of these statements was being offered as a condition or other restriction. In the hearing it was accepted that they will need to check each other.

On 21 July 2020 I received further notification from Mrs Whitaker that Adele Smith had resigned as a director and that Shay Smith had been appointed instead. There had not been sufficient time to process that latter application and Shay Smith’s details have not been advertised, which would have allowed for statutory opposition to be lodged. However, I took the opportunity at the hearing to explore the issues and heard representations from Ms Newton.

There was a clear acceptance from Mr Smith senior that he had permitted a situation where statements had not been complied with. A previous Standard licence was permitted to continue even without a Transport Manager. There was similarly a change in entity. Even after the previous licence was revoked Mr Smith continued to allow the unlawful operation. He asked me to accept that the occasions when the Operating Centre requirement was ignored were few in number. I could not help but observe that the photographs provided by DVSA showed the vehicle parked on a pavement in a residential area and directly opposite a T-junction. On his own admission this was because a job had been extended to 1 am and he had driven home tired.

Mr Smith told me that he had failed to tell Mr Shay Smith about the previous licensing history. I could infer from his demeanour that he was now ashamed and that he had let his son and employees down. The threat of impounding had been enough to finally make Mr Smith realise that he could no longer ignore the licence requirements. The vehicles have been parked up since then. I was asked to accept that he had continued to have the vehicle tested. It was maintained by a mobile fitter in the applicant’s yard. The hearing allowed opportunity to go through the licence requirements in some detail and to explain the level of inspection and scrutiny that needs to be demonstrated.

The Directors were due to attend Operator Licence Awareness Training with MDR on 5 August 2020. I was presented with a number of documents, which they intend to employ but they also need to consider how they will conduct and record cross-checks of PMIs and DDRS. They also need to adopt and implement a wheel-off and retorque policy. They will need to use the course attendance to gain knowledge on how to read a roller brake test print-out. They are to communicate those arrangements to OTC, which I may adopt as statements of intent. I look forward to that and the proof of attendance. In the meantime, the application will need to be republished in Applications and Directions, to include the details of Mr Shay Smith. Those details will need to be supplied to the OTC in Leeds.

Following that hearing, I reserved my decision to allow the applicant opportunity to make further representations.

5. Determination

The application was republished to show the correct Director details. The objection period for the application ended on 27 August 2020 with no opposition received. I was subsequently provided with certificates confirming the attendance of Shay Smith and Steven Smith at Operator Licence Awareness training on 5 August 2020.
Mrs Whitaker also provided me with a copy of a report by Peter Gale. Going forward it is intended that Mr Gale will support any operation for an initial period of 6 months. I have accepted the following as statements of intent:

• Driver Defect Reporting– all vehicles subject to nil defect reporting. Roadworthy defects will result in vehicle being taken out of service until repaired and logged. All minor defects and repairs to be recorded in the same way.
• Maintenance checking – all sheets to be scrutinised and for recurring issues to monitor inspection quality and to monitor DDR effectiveness; laden RBT at every inspection.
• Driver training / monitoring – the 2 directors are the only drivers for the time being; however, a record of checks to be made in readiness in the event additional drivers used; successive DDR sheets to be analysed for repeat defects; PMI sheets monitored for driver reportable defects.
• Driver hours – records kept to ensure compliance with domestic and WTD rules; signed weekly and checked by consultant monthly.
• Wheel-off policy – re-torque to be conducted by maintenance provider within 30 minutes of wheel removal, to be recorded on the Preventative Maintenance Inspection; if the wheel is removed at the roadside, then the retorque will be completed within 40-80km, to be recorded. A vehicle will be removed from service pending investigations if the process is found to have not been followed but all staff will read and follow the DVSA guidance ‘Careless Torque Costs Lives’, with driver training.

On that basis, I was able to grant this application with a formal warning in respect of the shortcomings identified above. I have noted the intention to review maintenance arrangements and I reserve the right to request a follow up by DVSA in the future.

RT/TC/18/9/20