Decision

Decision for Stephen Cornish t/a Cornish Scaffolding (OF1099804)

Published 20 March 2023

0.1 In the Eastern Traffic Area

1. Written Confirmation of the Traffic Commissioner’s Decision

1.1 Stephen Cornish t/a Cornish Scaffolding (OF1099804)

2. Background

Stephen Cornish holds a Restricted Goods Vehicle Operator’s Licence authorising 1 vehicle only. That licence commenced on 23 December 2010.

There are two Operating Centres: Driftwood Farm, The Drift, Bourn, Cambridge CB23 2TB, and Spring Hall Farm, Barton Road, Haslingfield, Cambridge CB23 1LW. At the hearing Mr Cornish informed me that he had moved from the second site in October 2021 but had not notified the Office of the Traffic Commissioner. Preventative Maintenance Inspections are said to be carried out by Cambourne Vehicle Services (The Drift), Optimus Commercials and Engineering and MJ Rolls Garage Services, at 6-weekly intervals.

A Desk Based Audit was started in February 2021 as the operator has a poor annual test history. The DBA was upgraded to a Maintenance Investigation Visit which took place in May 2021. The DVSA Examiner found several issues and the MIV Report was unsatisfactory. As Mr Elson recorded at that time, this is an owner operator who is engaged in the erection of scaffolding. He had not been the subject of any previous visits or audits.

3. Hearing

The Public Inquiry was listed for today, 5 September 2022, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. Mr Cornish was present but signed himself as ‘Director’. A Companies House search immediately disclosed Mr Cornish as the Director of Cornish Scaffolding (Cambridge) Ltd, which was incorporated on 11 December 2014. It was later dissolved. This licence commenced on 23 December 2010. Mr Cornish confirmed that he remains a sole trader.

3.1 Issues

The public inquiry was called to determine whether I should intervene and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

• 26(1)(b) – condition to notify changes i.e., in maintenance, finance to support maintenance, and fitness.

• 26(1)(e) – statements regarding the inspection of vehicles and to abided by licence conditions.

• 26(1)(f) – undertakings: that the vehicle would be fit and serviceable, to employ an effective written driver defect reporting system, to have complete maintenance records.

• 26(1)(h) – material change in the fitness to hold a licence and in the finance required to support maintenance

• 28 – disqualification of directors and operator to be considered

The operator was directed to lodge evidence in support by 22 August 2022, including financial, maintenance and other compliance documentation. He failed to do so. He was chased and given until 31 August 2022 but failed to meet that deadline. He attempted to email some documents last week and chose to present originals on the date of the hearing, arriving 15 minutes before that start. No original bank statements were produced. The copies seen were in the name of ‘Cornish Scaffolding’ and disclosed a different address to the correspondence details provided for the operator’s licence. He still owns that property, where his ex-partner and son reside.

3.2 Summary of Evidence

The DVSA initially commenced a desk-based assessment on 11 February 2021, due to poor annual test history. DVSA then decided that a maintenance visit was required. This was commenced at Drift Wood Farm on 7 May 2021. The report prepared by the Vehicle Examiner, Mark Elson, can be found at pages 36 to 46. The Examiner found the compliance systems to be unsatisfactory. His reasons can be summarised as follows:

• Alarm at the presentation of a vehicle for inspection on 7 February 2020 and 24 January 2021 with defective tyres, either ‘Bald’ or ‘Below tread limit’ or ‘bulging’.

• Inspection pro-forma and therefore standards were found to be out of date with no tyre pressures recorded, no brake performance check or confirmation of roadworthiness.

• No evidence of inspection planning or a VOR system were produced.

• No driver defect reporting or any type of system to record defects between inspections. The Examiner referred to the defective tyres at inspection.

• Issues with the proper completion of maintenance records.

• Very poor annual test record, with 100% test failure rate

• Issues with the suitability of the maintenance contractor.

• Visual smoke test only with emissions checked during Preventative Maintenance Inspections.

• No system for recording re-torquing of wheel nuts or other wheel security.

• Required to advise the operator on basic safe loading techniques.

The operator’s response of 27 May 2021 is to be found at page 47. It suggests that a driver defect report book has been employed since 18 February 2021 (following the initial contact). It indicates that inspections will take place at 6-weekly intervals and will be completed by Cambourne Vehicle Inspections. The contractor has been advised that the inspection form should be updated. That has now been changed. He confirmed the visual smoke check of emissions at each inspection. The response indicates that wheel and tyre security will be checked at Preventative Maintenance Inspections. Wheel nuts are to be re-torqued after a wheel has been removed and then logged. They will be checked daily.

The response suggests that a tailgate has been fitted to the vehicle for load security. The operator refers to tachograph calibration by WTL Cambridge on 24 May 2021, new tyres fitted on 11 and 26 May 2021, a tilt warning light on the dashboard was addressed on 16 April 2021. A brake caliper was checked, and a brake test undertaken on 24 May 2021.In addition work was undertaken on a body panel, mud flap, and seat belt, but no dates are provided. The operator commits to using Cambourne Vehicle Services and MJ Rolls Garage Services; ‘I am trying very hard to put the correct systems in place to ensure going forward that my vehicle is correctly maintained and managed and that when I have my next MOT that I do not receive the advisories that I have in the past. I understand that the ultimate responsibility for the vehicle condition rests with me and not to rely completely on the vehicle inspections to highlight any issues.’

The DVSA decided to conduct a further assessment in 6 months. A completed DVSA Remote Enforcement Office questionnaire was returned with additional information relating to Preventative Maintenance Inspection records, roller brake tests, invoices/ receipts was received from the operator on 18 March 2022 (pages 49 to 52).

An assessment was carried out by Vehicle Examiner, Michael Bale, who concluded that the operator had not complied with the assurances provided to Mr Elson. He identified the following areas of concern:

• Failure to comply with the declared maintenance intervals between 6 September and 5 November 2021. That being 8 weeks and 2 days

• Failure in planning.

• Failure to improve annual test failure rate with a further failure on 7 October 2021 (page 55).

• No evidence of a driver defect recording system.

• Preventative Maintenance Inspection records signed-off as fit for service when tyre pressures were not recorded and/or with no brake performance test.

My dip sampling of the maintenance records disclosed the following:

• 25 July 2022 – inspection with no discernible brake performance check. It records defective fuel gauge, lamp lens broken, bumper bent, exhaust blowing with defects to be monitored. The inspection was not signed off and the driver defect report for that date was Nil.

• 10 June 2022 – inspection with roller brake test: 50%, 27%, 17% but insufficient load on axle 2. It records defective fuel gauge, oil low, bumper bent, seatbelt worn with defects to be monitored. The inspection was not signed off and the driver defect report is Nil for that date.

• 29 April 2022 – inspection with roller brake test: 53%, 26%, 21%. It records defective fuel gauge, oil low, exhaust blowing, air dryer blowing oil, seatbelt worn with defects to be monitored. The driver defect report is Nil for that date.

• 18 March 2022 – inspection with roller brake test: 47%, 27%, 15% but insufficient load on axle 2. It records exhaust blowing slightly and the air dryer blowing oil. Defects were identified on the driver defect report.

• 4 February 2022 – inspection with roller brake test: 45%, 25%, 17%. It records defective mirror, lights, sidebars/bumpers, chipped screen, water jet inoperative, but is not signed off. The driver defect report is Nil for 3 February 2022.

• 21 December 2021 – inspection with roller brake test: 51%, 28%, 16% but insufficient load on axle 2.

In evidence, Mr Cornish indicated that he had been advised by the main contractor, Optimus, that there was no need to brake test at every inspection. He had changed from MJ Rolls because that contractor did not have brake testing facilities and he was required to pay an extra £125 per brake test. He appeared to be unaware of the DVSA Guide to Maintaining Roadworthiness or the Guidance: ‘Understanding your HGV or trailer’s brake test report’ published on 10 February 2022. He appeared to be vague about basic licence requirements such as wheel security, relying on a notification tag left by the contractor after which he might have the wheel nuts retorqued in 2 or 3 days. The inspection records were largely illegible with defects recorded but no rectification taken. The operator described these as advisory, but this did not accord with the contractor’s own code on the inspection forms. The description of defects such as with the air dryer, suggested that the operator accepted maintenance standards which left a risk to other road users. Both operator and contractor were apparently content with a fuel gauge, which showed that the tank was empty. The impact to road safety of the vehicle suddenly stopping did not appear to have been considered.

4. Determination

I was satisfied on the evidence summarised above that I should make adverse findings in respect of section 26(1)(b) – the condition to notify relevant changes. I noted the historic failings, the changes in respect of maintenance, the failure to provide admissible financial evidence and the change in Operating Centre. I noted the historic concerns regarding inspections and recorded that under section 26(1)(e), but my main and current concerns resulted in adverse findings under section 26(1)(f) due to the standard of maintenance, recording and driver defect reporting.

I referred to the guidance from the Appellate Tribunal in 2013/082 Arnold Transport Ltd: “The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry. It will be for the Head of the TRU to assess the position on the facts of each individual case. However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.” There was very little by way of assurance except to note that the inspections were taking place as stated. The operator indicated that the problematic vehicle might be replaced in October, but there was nothing more concrete.

I started with the question posed in 2009/225 Priority Freight and approved in 2013/007 Redsky Wholesalers Ltd, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? The absence of the basic level of understanding to even implement effective systems, let alone manage them, led to one conclusion regarding the operator’s ability (fitness) to manage a licence. I therefore made that adverse finding under section 26(1)(h) and recorded the absence of admissible financial evidence. I took account of this being the first Public Inquiry and the lack of regulatory attention to date. The operator indicated that he was willing to comply in future. He will have opportunity to demonstrate that in the remaining period of operation and on application. This operation cannot continue in this vein. He would be well-advised to seek professional assistance and to consider attendance at Operator Licence Awareness Training. This licence will be revoked from 23:45 on 31 October 2022 to allow a safe run down. It will be for the operator to determine whether he is able to apply for a new licence.

R Turfitt

Traffic Commissioner

5 September 2022