Decision

Decision for Swinford Haulage

Published 30 June 2021

0.1 IN THE EASTERN TRAFFIC AREA

1. SWINFORD HAULAGE LTD – APPLICATION: OF2035122

2. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

3. Background

Swinford Haulage Ltd seeks a Standard National Goods Vehicle Operator’s Licence authorising 5 vehicles and 5 trailers. The Director was said to be Tina Wells. As of 19 May 2021, I was notified that the Companies House register had been updated to record the appointment of Gary Brown and that Mrs Wells had resigned. Richard Cussons was nominated as the CPC holder. He qualified in June 2002 and undertook professional development on 10/11 June 2020. I was then notified that Sam Casamily, who was described as a ‘regulatory manager’ had resigned. The representations submitted on 19 May 2021 refer to the nomination of Andrew Chapman, but as of 20 May 2021, there was no application form attached to the licensing record.

There is one proposed Operating Centre at Anstone Commercials, Ltd, Chuch Lane, Marks Tey, Colchester CO6 1LN. The application proposes Anstone Commercials to undertake Preventative Maintenance Inspections of vehicles and trailers at 6-weekly intervals.

4. Hearing

The Public Inquiry was originally listed for 25 March 2021. The call up letter was sent on 18 February 2021 and the bundle was served 25 February 2021. Financial and other documentation were required to be lodged by 11 March 2021 but had to be chased. An email was received from a Rick Nugent of RHN Consultancy on 11 March 2021, requesting an adjournment. It referred to a young member of the Director’s family having been admitted to hospital nearly two months previously and being discharged at the end of January 2021. Another member of the family was said to have required a hip replacement and was recuperating at home. The documentation provided by OTC had apparently been missed. The adjournment application was considered and recorded the significant notice given, with time left so that the applicant might make arrangements to attend. The DTC correctly referred to Statutory Document No. 9 and refused the adjournment as he remained to be satisfied that the applicant had been unable to prepare for the hearing. The late involvement of the representatives was not a proper ground for an adjournment. The application was renewed on 25 March 2021, when the Director failed to appear. In attendance were Aled Owen, solicitor for the applicant, Clive Wells, the Director’s husband, the consultant, Mr Nugent. Mrs Wells was apparently unable to attend because she was required to work as a special needs teacher. The proposed CPC holder, Richard Cusson, also failed to attend.

No evidence was taken, but it was suggested that Mrs Wells would reduce her other work to a total of 2.5 days per week, if the application is granted. Reference was made to the potential appointment of a ‘regional Director’, this might take up to 56 days. It was apparently the applicant’s intention to vest responsibility in that second director, but Mr Nugent would also be retained to ensure that the standards were met. Mr Nugent is based in Llanelli in South Wales (page 104).

The submissions lodged in advance of the first hearing (pages 93 to 96) indicate that Mr Cussons is no longer connected with this application and that a new CPC holder is being sought. The submission refers to a Period Grace, which, as the Statutory Documents explain, is only available to an existing licence. Nevertheless, the presiding DTC was apparently persuaded to adjourn this application. I am unclear why.

The hearing was relisted before me today, 24 May 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Gary Brown, Director, accompanied by Clive Wells, who is described as a manager and shareholder, and Rick Nugent, consultant, via video link. The applicant was represented by Ruth Sheret of Harrison Clark Rickerbys.

5. Issues

The public inquiry was called to allow the applicant opportunity to satisfy me that the statutory criteria are met and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 13A(2)(b) – good repute

• 13A(2)(c) – financial standing and 13D

• 13A(2)(d) – professional competence and thereby 13C.

The reschedule letter dated 23 April 2021 reminded the applicant to lodge all evidence in support by 10 May 2021, having failed to do so in advance of the first listing. Further Documentation was not received until 19 May 2021, including a statement from Gary Brown. No evidence of proposed maintenance systems has been lodged.

A further application to adjourn the hearing yet again, was refused. I referred to the relevant paragraphs of Statutory Document No. 9. As paragraph 29 explains: there is a considerable public interest in hearings taking place on the date set and so hearings should not be adjourned unless there is a good and compelling reason to do so. This was the second attempt to hear this application, having given clear indications of the criteria to be met, with notice given and a lengthy adjournment granted by the DTC on the last occasion. The applicant was also legally represented and had the assistance of a transport consultant. It might also have referred to the publicly available Statutory Documents. For those reasons, the applicant failed to satisfy me that an adjournment was required. I also refused a subsequent application to withdraw the application for similar reasons. As Annex 3 of Statutory Document No. 10 directs: An applicant is free at any time to withdraw an application subject to them forfeiting their fee, any outstanding matters will be considered on any future application. Once any regulatory process has begun, such as a public inquiry, an applicant is unable to withdraw the application in an effort to avoid negative findings. The starting point in this situation is to refuse the request and consider whether the applicant meets the statutory criteria.

6. Summary of Evidence

When the application was processed, it was noticed that Mrs Wells had been a Director of Endbridge Ltd from 14 September 2004 to 17 December 2007, which held OK1040119 until it was revoked on 19 August 2009, when it entered compulsory liquidation.

Mrs Wells was also a Director of Equine Synthetics Ltd from 1 April 2019, which held OF2014782 after it was granted at Public Inquiry on 28 November 2018, on the basis of an undertaking for a financial review by 30 April 2019. It subsequently breached that undertaking and the licence was revoked on that basis from 23 July 2019. Mrs Wells responded on 10 June 2019 using Mr Wells’ email address, suggesting that she intended to change the name of another entity, SC Road Transport, to the name of that company. She claimed that this had led to the account being frozen and she requested more time.

The Case Summary highlights the relevant sections of the application form (pages 19 to 31), where Mrs Wells failed to declare that information. Mr Nugent responded on behalf of the applicant (page 60) confirming the insolvency of OK1040119. He also stated that Mrs Wells had nothing to do with the circumstances of OF2014782, which he attributed to a Sean Gleeson. Checks on Companies House showed that Mr Gleeson had never been a Director of that company, although he was a Director of this applicant to 10 October 2019, when Mrs Wells was then appointed. Mr Nugent stated that the failure to declare attendance at a Public Inquiry was an oversight, which might be remedied by the involvement of an external Transport Manager.

In her letter dated 18 November 2020 (page 68) Mrs Wells states that there was a communication error between herself and Mr Nugent. She accepts that incorrect information was provided. She blames the error on a recent move. She states that SC Road Transport Limited was purchased from Sean Gleeson and renamed Equine Synthetics Limited, but as the Companies House record at pages 76 to 678) shows. Mr Gleeson was never a Director.

Mrs Wells continued to distance herself from any involvement in pursuing the application, the accuracy of the form, subsequent correspondence and even attendance at the previous hearing, to the point where she has now resigned. I was referred to the appointment of Mr Brown. Mr Wells remains as a manager and shareholder. As the appellate Tribunal spelled out in 2000/041 Hi-KubeTransport Ltd, a traffic commissioner is entitled to infer that application form has been checked by the applicant and in the case of a Company, its Director. The applicant’s bundle contained the final page of an application and a partial declaration, signed by Mr Brown and dated 19 May 2021. I was not provided with the remainder of the application form. Mr Brown assured me that he had checked it, which is to his credit.

Mr Brown’s short statement, dated the same day, refers to his family connections to HGV driving and his experience in the Royal Navy, then the Maritime and Coastguards Agency and other work since. He has been appointed by Mr Wells, who he met through mutual friends and has known for approximately 10 years. He very frankly admits that he does not have an in-depth knowledge of transport requirements but refers to his leadership experience. He states that he is confident that with the right support, he will be able to ensure compliance. He refers to the involvement of Mr Nugent and that his consultancy has been retained to analyse drivers’ hours records. He is willing to undertake operator licence awareness training. Those were offered as potential undertakings. In evidence is confirmed that he had yet to undertake any training which might make him fit to oversee compliance and was very straight forward in his answers that he would be unable to answer any detailed questions.

The onus is on an applicant to satisfy me as to professional competence. Statutory Document No. 3 sets out the requirements, but in essence this requires the nomination of a reputable CPC holder, who is capable of exercising the statutory requirement for effective and continuous management. As the Upper Tribunal explained in 2011/036 LWB Ltd, it is for the applicant or operator to satisfy the Traffic Commissioner that the person concerned can fulfil the role of transport manager: “In our view, from the terms of paragraph 3 of Schedule 3, that the appointment of a new transport manager is, on its own, not enough to satisfy the requirement of professional competence. Instead the operator must go further and show that the person appointed is of ‘good repute’ and ‘professionally competent’ and that the person is under contract to provide “continuous and effective responsibility for the management of the road passenger transport operations of the business”. At all times, the onus remains with the applicant. Since the departure of Mr Cussons there appears to have been limited progress and Mr Chapman failed to attend the hearing. It was confirmed in evidence that no TM1 form had been lodged so that checks could be carried out. In addition, there was no contract in place and Mr Brown confirmed that he had not even met Mr Chapman, contributing to my concerns under 13A(2)(b) and any genuine link with Mr Chapman.

There has been significant change in the application since it was published in Applications and Directions. The purpose of that publication is to alert statutory objectors who might then oppose the grant of an application on the basis that the applicant does not meet the statutory requirements. The late changes in this application mean that there have been no checks of the suitability of Mr Brown and his fitness or the repute of Mr Chapman and his ability to meet the statutory requirements.

I remain to be satisfied at to section 13A(2)(b) repute and (d) professional competence and therefore how section 13C will be met. I formally refused the application on that basis. I used the opportunity to explain to the applicant Director how he might answer the outstanding questions and directed him to the Statutory Documents and in particular paragraph 54 of Document No. 3 on Transport Managers.

In that context, it is right that I direct the applicant to further guidance, in advance of any new application. The previous Director had failed to declare her link with previous insolvencies. Financial standing is not only a mandatory but a continuing requirement. The Companies House register suggests that the applicant was incorporated on 19 May 2015 and that it is engaged in freight transport by road. However, it is yet to be granted an operator’s licence. In this case the applicant was required to demonstrate the availability of £25,800. The funds demonstrated were attributed to a Business Bounce Back Loan and personal savings. The applicant proposed an undertaking for a financial review, should the application be granted.

However, the representations received on 19 May 2021 suggested that the applicant also proposed to rely on a ‘backer’, named Alan Forward. The representations make clear that this is a statutory declaration dated 29 March 2021. That would not be acceptable in support of an application by a corporate entity, as Statutory Document No. 2 on Finance explains: In the case of partnerships or sole traders the financial evidence (see above) may on application, at the traffic commissioner’s discretion, be in a different name, but it must be supported by a statutory declaration (see example at Annex 2) signed as at the date of the application by the person(s) holding the money showing that it is available to other person(s). It is not acceptable for a corporate entity, which is enjoys limited liability status.

My impression of this application was that it was premature, without full thought being given to the statutory criteria to be applied. I am unsure why the application has been prolonged for this period. An applicant cannot legitimately expect an application to be adjourned on multiple occasions to give an opportunity to consider a traffic commissioner’s questions. An application for an Operator’s Licence should not be viewed as a tick box exercise or something to be delegated away; as any application will be the subject of a qualitative assessment by the Office of the Traffic Commissioner. Where notice is given that an application might be refused, an applicant should carefully consider the strength of that application before requesting a hearing. On this occasion I have attributed the state of this application to a lack of knowledge, but that must be addressed before renewing its application.

Richard Turfitt

Traffic Commissioner

24 May 2021