Decision

Decision for Titan Plant Limited

Published 18 August 2022

0.1 SOUTH- EAST AND METROPOLITAN TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. PUBLIC INQUIRY HEARD AT IVY HOUSE, IVY TERRACE, EASTBOURNE ON

2.1 29 JUNE 2022

3. OK2040516 TITAN PLANT LIMITED

4. Background

The operator Titan Plant Limited is the holder of a restricted licence granted on the 26 April 2021 authorising three vehicles and one trailer. When the licence was granted the director of the company was Michael Livesey, He remained as a director on Companies House records until the 31 August 2021 and an application was made to remove him from the operator licence records on the 15 August 2021. On the 14 May 2021 an application was made to add Elion Lacaj as a director of the company.

When the licence was granted, an undertaking was agreed that evidence of financial standing for a three-month period (June to August) would be submitted by the 30 September 2021. On the 26 September Mr Lacaj submitted a screenshot of transactions in the company’s bank account. These showed a balance of [REDACTED] in the account until the 23 September when a deposit of [REDACTED] was made by BK Plant Limited.
As the undertaking to produce evidence of financial standing had not been met and there had been a failure to notify a change of ownership of the company a letter proposing to revoke the licence was sent to the operator on the 21 September 2021 and a follow up letter on the 21 January 2022. In response Mr Lajac stated that he had notified by letter on the 28 October 2021 that he had taken over as director and shareholder and had only gained access to the company’s bank accounts at the end of January 2022.

A review of the case was undertaken by the Traffic Commissioner in February 2022 when it was noted that the company B K Plant Limited who had paid a substantial amount into the company account had previously held a licence which was revoked on the 13 October 2020. The Commissioner also noted that two vehicles which were specified on the current licence had previously been specified on the B K Plant Limited licence. If those vehicles had been purchased in the 12 months prior to the application for this licence being made it should have been declared on the application form. It was also noted that Mr Lacaj had been driving a vehicle WA09 BEY when it was authorised under the B K Plant Limited licence and a prohibition was issued on the 20 May 2020.

Further queries were raised in relation to payments made into the company bank account in February 2021 by a Paul Lyon and the explanation given for those payments by the then director Michael Livesey. On the 9 June 2021 Neil Lyon attended a new operator seminar as “transport manager” for the operator.

As a result of the background circumstances and the absence of evidence of financial standing it was decided to call the operator to public inquiry on the grounds that the undertaking to provided evidence of financial standing had not been met and concerns that the operator may be using the licence as “a front” for B K Plant Limited. The previous director Michael Livesey was called to the inquiry in a separate call – up letter.

After the call up letter was sent and prior to the inquiry a copy of a DVSA desk-based assessment dated 7 June 2022 was received in the Office of the Traffic Commissioner and sent to the operator on the 8 June 2022. The operator was advised that the contents would be included in the material considered at the inquiry

5. The Public Inquiry

Mr Lacaj attend the inquiry and was unrepresented. He was accompanied by Mr Mohammed Naeem who said that his role was an administrator assisting Mr Lacaj. Former director Michael Livesey did not attend, the call up letter which had been sent to his last known address having been returned marked “moved away”

Mr Lacaj said that he purchased the company from Michael Livesey for [REDACTED] as far as he could remember”. He thought that he paid cash and had no written record of this transaction. He said that the payment had been made “for the company name and the licence.” He did not purchase the vehicles and they were on hire from a company Orbital Plant Services Limited. He agreed that he had driven in the past for B K Plant Limited and for Orbital Plant Services Limited. He had not known Mr Livesey before he bought the company and had never met Paul or Neil Lyons who were mentioned in the call-up papers.
Mr Lacaj said that his work comprised using a grab lorry for “muck away” services and he also carried plant on one of the vehicles. He did this for B K Plant and others but worked mainly for cash. I asked him why, if he carried plant for others, he had said in the desk- based assessment information that he “used the vehicles to deliver my plant and equipment to the construction sites”. He said that this must have been a mistake.

He said that it was mainly B K Plant Limited who paid him via the bank account, and this was why payments were made by them and showed on the statement. I also noted a payment of [REDACTED] had been made by Oribital Plant Limited on the 22 March 2022 and Mr Lacaj said that this was for work done by him for them and was a balance due after a deduction had been made for the hire costs of the two vehicles. The hire cost was [REDACTED] per month in total and this was paid in cash. He had no hire agreement or invoices in relation to this agreement.

I caused enquiries to be made and was told that Orbital Plant Services Limited had been refused an operator’s licence on the 5 November 2020 on the grounds that the director at that time Afrim Nataj had been disqualified indefinitely from holding a licence on the 7 August 2018 following a public inquiry in respect of company Majors Engineering Limited.
I asked Mr Lacaj why no payments from the company account were shown in his favour and he said initially that what he earned he put back into the company but added that he worked mainly in cash and so used cash himself. He had [REDACTED] in petty cash available but had no records or invoices for work undertaken. A lot of money had been spent on maintaining the vehicles. I noticed that the bank statement showed payments made to HMCTS and Mr Lacaj said these were in respect of fines imposed for drivers’ hours offences.

Mr Lacaj said that he learned from the experience of being called to inquiry and asked to be given a chance to continue with the licence. Mr Naeem said that he was helping Mr Lacaj in relation to the accounts and administration.

When the inquiry had concluded I asked for checks to be made on the registered keepers of the authorised vehicles as it had been revealed that they were not owned by the operator. The checks showed that one vehicle was registered to Orbital Plant Services Limited and the other to B K Plant Limited. I arranged for this information to be sent to Mr Lacaj for comment and he replied on the 4 July saying that he was unaware that B K Plant Limited were the registered keepers of one of the vehicles.

6. Findings and Decision

My findings and decision in this case focus mainly on two issues – financial standing and whether I find that the operator is acting as a front for someone else. These were the issues identified in the call up letters and whilst I can have regard to the desk-based assessment which was served after the call up this is not a primary consideration in this case.
Dealing first with financial standing there is no doubt that the operator failed to comply with the undertaking entered into upon grant of the licence to provide evidence of sufficient finance for a three-month period by the 30 September 2021. The documentation provided did not show sufficient finance and this was the situation even at the date of the public inquiry. The operator was told what was acceptable to show financial standing at the time the undertaking was entered into and in the call up letter. It is unacceptable therefore to attend the inquiry and ask that cash of uncertain and unverified amount be considered. I have no hesitation therefore in finding that there has been a breach of Section 26(1) (f) and (h) of the Goods Vehicles (Licensing of Operators) Act, 1995 in that an undertaking was not complied with and there has been a material change in relation to the licence.

In relation to the suspicion that “fronting” as defined in the case of Silvertree 2012/071 and set out in the call up letter is taking place, I find that it is more likely than not that this has occurred and is occurring. My reasons for this finding are as follows. Mr Lacaj was hesitant when giving his evidence and vague on some particularly relevant and important points. He said that he bought the company for “[REDACTED] as far as he could remember” and “believed he had paid cash”. As the transaction is supposed to have taken place comparatively recently, I do not accept that his memory would have faded to the extent that he is unsure of the amount he paid and the method. He told me that he had never met nor knew Paul or Neil Lyon and yet Neil Lyon attended a new operator seminar on behalf of the operator on the 9 June 2021. Mr Lacaj applied to be added to the licence as director on the 14 May 2021. The fact that this application pre-dated the attendance of Mr Lyon at the seminar was not explained by Mr Lacaj.

It transpires that the registered keepers of the vehicles being used by the operator are B K Plant Limited and Orbital Plant Services Limited. These companies have had licences revoked or refused and Mr Lacaj told me that he had driven for both companies in the past. I believe that it is more likely than not that this operator’s licence is being used by those companies to carry out their work requiring a licence. I do not accept Mr Lacaj’s evidence that he hires the vehicles from Orbital Plant Services Limited. There is no evidence of a hire agreement to support this claim and no invoices to show payments are made. Conversely there are payments being made from both companies into the operator’s bank account. I remind myself that this operator holds a restricted licence which would not allow for carriage of goods for another person for hire or reward even if the arrangement was bona fide. It is telling that in the desk-based assessment a statement was made and signed by Mr Lacaj that it was only his plant which was being carried which is clearly not the case.

For the reasons detailed above I find that the operator no longer satisfies the criterion of fitness to hold a licence as required by Section 13 (4) of the Goods Vehicles (Licensing of Operators) Act, 1995 nor the requirement under Section 13(6) to satisfy me that there are sufficient financial resources to ensure that vehicles will be kept in a fit and serviceable condition.

Having made those findings I see no alternative in this case to revocation of the licence and order that this shall take effect on the 1 August 2022 to allow time for notification of the decision to take place and implementation.

I have considered whether to disqualify the former director Michael Livesey and do not consider this appropriate as his level of culpability is unclear and he did not receive the call- up letter having moved house.

In relation to Mr Lacaj I am minded to order that he should be disqualified for a period of one year from holding or obtaining an operator’s licence but did not ask him to comment on that possibility at the inquiry which I am required to do. I am therefore not making an order at this stage and allow him 14 days to submit any representations he wishes to in relation to that aspect. If nothing is heard from him the disqualification will take effect from the 1 August 2022. The reason I believe an order for disqualification is necessary and proportionate is because I believe he has been dishonest in his dealings with the Traffic Commissioner, and this is behaviour that merits the extra sanction of disqualification. In limiting the period to one year I reflect the fact that I believe he may not have been the instigator of the dishonesty. If he ever applies for a licence again he will need to ensure he is much better prepared and able to demonstrate that he has no ongoing connections with the companies involved in this case.

Having given Mr Lacaj 14 days to respond to the proposal to disqualify him and no reply having been received from him I order that he is disqualified for a period of one year from holding or obtaining an operator’s licence and from being a director of a company or partner in a partnership which holds a licence. The period of disqualification will take effect on the 1 August 2022.

John Baker

Deputy Traffic Commissioner

26 July 2022