Decision

Decision for Storefield Aggregates Ltd (OF1099064) and Jonah Charles Clarke – Transport Manager

Published 30 December 2020

In the Eastern Traffic Area

Confirmation of the Traffic Commissioner’s Decision

1. Background

Storefield Aggregates Ltd holds a Standard National Goods Vehicle Operator’s Licence authorising 17 vehicles and 5 trailers. The Directors are Douglas Alexander Wright and Jonah Charles Clarke. Mr Clarke is also the Transport Manager.

There is one Operating Centre at Storefield Road, Rushton, Kettering NN14 1BP. There are three declared contractors showing on the licensing record: Oakley Road Garage (Corby) Ltd and TruckEast Ltd undertaking Preventative Maintenance Inspections of vehicles and trailers at 4-weekly intervals.

Mr Wright is a Director of Oakley Road Garage (Corby) Ltd and was its Transport Manager. That operator was put on notice of the need to submit evidence of financial standing but failed to so and action was taken. It claimed not to have received the correspondence and only then submitted satisfactory evidence. It was issued with a warning that its repute is severely tarnished. On the application form for OF1099064, Mr Wright refers to 50 years of experience of inspecting a fleet of 15 vehicles.

2. Hearing

The Public Inquiry was listed for today, 8 December 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of the Directors, Mr Clarke and Mr Wright represented by Laura Newton, solicitor, of Smith Bowyer Clarke,

The operator was directed to supply financial, maintenance and other compliance documentation and evidence by 30 November 2020. The evidence submitted was not in an admissible format. It was accompanied by an email dated 16 November 2020 to Keith Cook from a Paul Marsden who is described as a Senior Relationship Manager in the Northampton Commercial Office of the Natwest Group. He claims that Natwest is unable to verify the statements due to the Covid-19 pandemic. The Natwest website suggests that branches in Northampton are generally open between 9:30 and 16:30 on weekdays. At the hearing I was presented with acceptable evidence covering only a month.

3. Issues

The public inquiry was called for me to consider whether there were grounds for to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(c)(iii) – Prohibitions
• 26(1)(ca) - Fixed Penalty
• 26(1)(f) - undertakings (rules on drivers’ hours and tachograph regulations, vehicles, and trailers to be kept fit and serviceable, written driver defect reporting and rectification, maintenance records)
• 26(1)(h) - material Change:
• 27(1)(a) - repute, financial standing, and professional competence
• Section 28 – Disqualification to be considered

Mr Clarke was called to Public Inquiry for me to determine whether he had met the statutory duty to exercise continuous and effective management of the company’s transport activities, and therefore whether it was necessary for me to make a direction against his repute, which might prevent him from relying on his Certificate of Professional Competence.

4. Summary of Evidence

Vehicles AY17 MOA was stopped on 25 October 2019 and issued with an S-marked prohibition. It was specified on this licence on 21 March 2017. A Fixed Penalty Notice was also issued. These related to defects which, it was said, should have been identified at walk round check. The Notice at page 72 of the bundle refers to Driver Terence Cook and to tyre tread worn below the legal limit and to the cords. The issue of a FPN for a tyre related defect potentially qualifies this case as a most serious infringement. A previous Prohibition Notice issued in July 2016 also highlighted inspection of tyres (page 73).

The DVSA Vehicle Examiner, Robert Giddings, accompanied by Paul McAlindon carried out a follow-up investigation on 28 January 2020. He engaged with Mr Clarke. In addition to concerns about the circumstances of the S-marked prohibition, Mr Giddings identified several alleged breaches, which have been summarised in the Case Summary, as follows:

• Inspection Manual numbers missing from the inspection pro-forma, suggesting out of date standards being applied
• Pro-forma Inspection records did not have a section for tyre tread depths to be recorded;
• Inspections did not record tyre pressures.
• Records show brakes being adjusted and a Tapley brake test carried out, but no roller brake tests other than at annual test and in preparation.
• No wheel retorque log or other record kept
• Records have defects identified and signed off but no further information as to the repair work carried out.
• Drivers defect reports did not appear to be completed
• No process to ensure that the drivers are completing their daily checks.
• Operators test history showed a failure rate of 25% failure and a
• prohibition rate of 75% compared to the national average of 26%

Mr Giddings referred to the inspection records for KX65 RCU, which showed that brakes had to be adjusted on 12 consecutive occasions.

The Examiner’s statement records the transport manager’s response that vehicles up to two years old have their inspections carried out at the dealer’s premises although those records were not inspected during the investigation. Mr Giddings referred to an adequate workshop with a pit and space on the hardstanding outside for another vehicle. However, there is no headlight beam tester or roller brake tester. The Transport Manager failed to identify that the inspection pro-forma dated to 1972. Mr Giddings described the defect recording as vague, as could be observed in the records for AY17 MOA. I refer to the various examples he has provided in his statements to be found at page 55 of my bundle. In his response Mr Clarke then queries a number of the test failures The Transport Manager was apparently satisfied with only one roller brake test outside MoT and I noted that KX16 WED failed at annual test on 21 March 2019 for service brake performance. It then failed another two tests on 22 March 2019 for the same issue. KU15 FJL also failed its annual test on 15 March 2019 for service brake performance. Mr Clarke offered that different pressure might have been applied to the pedals.

Mr Giddings specifically refers to the driver walk round carried out immediately prior to the issue of the prohibition notice to AY17 MOA. The driver noted a fault with the nearside mirror and offside washer, but the condition of the tyres was merely ticked despite the cords being exposed. The two faults listed are simply annotated with “W”.

I refer to the response from Mr Clarke to be found at pages 62 to 64 of the bundle, in which he gave assurances regarding quarterly roller brake testing, re-formatting of the PMI and driver defect sheets, retorque log etc. The new forms are at pages 65 to 71 of the bundle. He makes admissions that the inspection form was out of date and that a previous DVSA inspection had advised on the need for tyre tread depths. He refers to quarterly RBT but not the starting point as set out in the Guide to Maintaining Roadworthiness, which dates from November 2018. Reference is made to improvements to ‘our’ workshop in 2020. Due to the position of Mr Wright, the location of the OC and the heavy reliance on Oakley Road Garage, the relationship is undoubtedly close. I expressed concerns at the willingness to in effect delegate risk management decisions to another entity.

I picked up on the admissions indicating that the fitters had been used to monitor the driver defect reporting. Mr Clarke’s statement proposes what he termed a ‘double-check’, but in fact was content to leave the checks to the workshop technicians to carry out random or intelligence-based checks. The S-mark was confusingly blamed on the driver the previous day for failing to complete checks properly.

The statement from the director/transport manager confirms that the operator currently has 16 vehicles and two trailers in possession and is involved in the movement and processing of construction waste. This is processed at the operator’s own site and the products then sold to local construction projects. The operator also sells quarried aggregates from multiple sources and runs its full fleet each weekday. There is occasional work at the weekend. He confirms that drivers are employed and there are 30 other employees, including an engineering and sales team.

He states that the newer vehicles in the fleet are subject to a repair and maintenance contract with Truck East with the remainder of work being undertaken by the second maintenance provider, Oakley Road Garage Ltd. Pre-annual test inspections are undertaken at Truck East. The Co-Director, Doug Wright, is a director of Oakley Road Garage Ltd. Mr Clarke refers to a team of three fitters including a mechanic, Roger. He accepts that there are issues with the paperwork but relies on his belief that the vehicles are always well maintained. The facility there include a 4 post lift, inspection pit, jacks, overhead crane, and tapley brake tester. The contractor has a plan to upgrade the facilities. I was told in evidence that this would be 2021.

He refers to the S marked prohibition notice issued to AY17 MOA, on 25 October 2019. He states that this notice was taken very seriously, and he understands my concern. The driver was sourced through an agency but had worked for the operator before, when he was given a thorough induction. It is accepted that Mr Cook did not undertake a sufficient check on this occasion. The vehicle had been used the day before on a tip and Mr Clarke identifies the obvious risk to the tyres. He refers to taking steps to ensure that this does not occur again. The improvements in the maintenance systems are summarised as follows:

• updated PMI sheet where defects (I looked against the relevant IM number and description) with detailed repair work and sign off;
• Inspections which involve recording the tyre pressures and tread depth;
• Wheel off/retorque logs with accompanying instructions given to the drivers;
• a weekly review of wheels and tyres every Sunday;
• a new driver defect reporting record with room to record details of the defect and rectification;
• Additional tyre checks based on a risk assessment of the site visited;
• random gate checks at the start and end of shifts;
• roller brake tests “on a more frequent and regular basis” with a decelorometer alternative. However, this relies on the upgrade at Oakley Road Garage.

Mr Cook had worked for the operator for a period of 6 months at that time. His services are no longer employed, and the operator has moved away from self-employed drivers.

Both Directors expressed concern at the annual test failure rate. Mr Clarke referred to the pre-annual test checks. He notes that KX16 ZWD failed on three occasions in July 2020 for service brake performance, having been checked at both Ford & Slater and Truck East. A similar situation arose in March 2019, resulting in a significant impact on the annual test pass rate.

In terms of drivers’ hours management, the operator relies on the Tachomaster system to provide for remote downloading of vehicles and then manual download of driver cards every 7 days. The system provides analysis and reporting of individual driver infringements, missing mileage, and lead-in times. Mr Clarke reports an absence of significant infringements beyond a few minutes over the four and a half hour driving limit or six-hour working time. He refers to reminders to drivers to use the correct mode switch and in respect of those minor infringements. The operator is considering driver CPC training in this area. Drivers are provided with DCPC training twice a year, which is intended to address risks arising.

I refer to the copy records for KX16 XWC. That vehicle was subject to a Preventive Maintenance Inspection on 2 November 2020 when a decelorometer test recorded percentage readings of 56% and 28%. A subsequent roller brake test on 9 November 2020 recorded 39% on the service brake, i.e, a fail, whilst secondary and parking brakes passed. The inspection records driver detectable defects with chips to the windscreen issues with seat belt, bulbs, and brakes, but with no driver defect report found. The inspection on 8 October 2020 also records a decelorometer test at 58% and 26%. A driver defect report for the same date records nil defects, despite there being chips to the windscreen and issues with the side lights. The inspection on 10 September 2020 also relies on a decelorometer test at 58% and 28%. Is again refers to driver detectable defects with issues around headlamp headlights and oil but the report of the same date records nil. The inspection on 13 August 2020 again picks up on the chip in the windscreen, washers, and oil. It too relies on a decelorometer test at 56% and 28%. I make similar comments in respect of the inspections on 16 July and 17 June which indicates that that have been operations during that.

Inspection records for KU15 FJD show an inspection on 24 October 2020, relying on a decelorometer test at 54% and 24%. A subsequent roller brake test on 9 November 2020 records 48%, 32%, and 19%, but this was not within the seven days advised in the Guide to Maintaining Roadworthiness. The report records issues with the side lights and washers, but a nil report on 22 October 2020. The inspection on 23 September 2020 relies on a decelorometer test at 60% and 30%, with reference to the washer but no driver report. The inspection on 24 August 2020 relies on a decelorometer test at 62% and 30% and again refers to driver detectable defects. A similar pattern is recorded in the inspection records for 29 July, 30 June, and 6 June 2020.

5. Determination

The operator has had this licence since December 2010. It has been issued with 3 prohibitions and 3 fixed penalty notices in the past 5 years. The annual test failure rate stands at 26% but much of that can be attributed to recurring failures with the service brake on KX16 ZWD, first in March 2019 and then delayed until July 2020 as a result of the DVSA decision on testing. The test history report details the efforts to resolve the issue with roller brake tests taking place at different ATF premises to try and identify the cause. One of the advantages of the Public Inquiry regime is that it allows traffic commissioners to engage with operators and to observe their responses. In this case I can confirm what Ms Newton termed their passionate commitment to compliance. I have attempted to acknowledge the positive improvements which do weigh heavily in the balance. I use one example of the lead-in reports and the driver’s hours management. Many operators would accept the minor infringements recorded but not this operator. That is reflected in the approach to the assessed induction and regular refresher training.

It is perhaps unfortunate that Mr Clarke did not avail himself of TM CPD since the early years of 2000. That might have alerted him to the issues with the PMI pro-forma and might have prompted him to take a critical eye to some of his systems, but improvements were made following the DVSA intervention. As the Upper Tribunal reminds us in 2013/082 Arnold Transport Ltd, the response of the operator can often be instructive in determining whether future compliance is likely. I am concerned that his involvement with the transport undertaking still relies on the delegation of functions to another but closely related entity. I point to the difference in approach where a wheel-off/retorque policy is being applied through Oakley Road Garage but not to the other named contractor. That must change now. I have already referred to the delegation to the workshop of the driver defect reporting and rectification. It is this operator, which enjoys the benefit of the operator’s licence, so its Directors must oversee compliance; its Transport Manager must exercise effective and continuous management of the transport undertaking. There is a proposal that he will have qualified assistance from within the company. The past shortcomings undoubtedly impact on Mr Clarke’s repute and he must now exercise continuous and effective management going forward, with a clear demarcation in the entities.

I give credit to the operator for recognising that elements of the operation require improved risk management. The identification of difficult sites, where additional driver inspections are required, is to its credit, as is the increase in gate checks, although returning vehicles may not have the value in improving the DDRS. It has changed its employment policy and recognises the type of risk identified by the Upper Tribunal in 2019/54 Bridgestep Ltd & Tom Bridge, where that operator felt unable to control self-employed drivers so as to comply with the requirements of the operator’s licence.

The application form referred to the movement of aggregates from quarry to construction sites. That has developed into the processing and recycling of waste produced back to the construction industry. Inevitably, the operator felt the impact of the reduction in residential construction at the start of the first lock down. The operator took the decision that it was not appropriate to place any driver on furlough during that period. It is now fully operational, and I was told that each of the specified vehicles is required every weekday and part of Saturday. I refer to the relevance of this to my decision making, as set out in the Contingency Statutory Document. This operator deserves credit for the efforts to continue to maintain vehicles during the lockdown, albeit there was limited access to roller brake facilities.

I refer to Regulations (EC) 1071/2009 and 1213/2010. Where there has been one or more ‘most serious infringements’ that must be considered for the purposes of Article 6(2)(a) i.e. good repute. That includes driving with a very serious deficiency of the wheels/tyres that would create such an immediate risk to road safety that it leads to a decision to immobilise the vehicle. I refer to the Prohibition Notice and accompanying Fixed Penalty. I judge that the operator should be capable of ensuring future compliance. In all the circumstances I find that it would be disproportionate to make a finding that repute has been lost.

I have taken account of the submissions. Mr Clarke in his statement refers to a wake-up call in respect of the operator’s licence obligations. He offers me assurances about the commitment to improvement. He is booked to attend a transport manager CPC refresher course together with Mr Wright and he is looking to appoint an assistant. He refers to the impact of the pandemic on the transport operations during which the operator has had to stand many of the staff down. He refers to the loss of a significant amount of capital. The operator has retained all its employees but is concerned that even if it were to lose a single vehicle it would cause major disruption to the site.

I have accepted those undertakings for:

• TM CPC refresher training on 15/16 December 2020,
• for quarterly laden RBT of vehicles, with decelerometer tests in-between (trailer must always be subject to RBT),
• and a compliance audit – 6 months from this date.

Accordingly, The repute of operator and the Transport Manager is tarnished but not lost. However, there is a need for deterrent action, to emphasise the points: there can be no repeat, and there is further work to complete. I remind myself of the useful Upper Tribunal decision in 2019/025 John Stuart Strachan t/a Strachan Haulage and that “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”.

I adopt Ms Newton’s suggestion of a categorisation in the ‘Moderate’ starting point. I have taken account of the potential impact on a business which has fought to re-establish itself following the lock downs. The operator’s licence will be suspended for a period of 14 consecutive days commencing at 23:45 on 22 December 2020. I have also allowed a Period of Grace of 28 days under section 27(1)(a), to allow for the production of the full three months of verified financial statements.

Richard Turfitt

Traffic Commissioner

7/12/20