Decision

Decision for Darron Burns, Transport Manager

Published 29 August 2023

0.1 In the Welsh Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Darron Burns, Transport Manager

2. Background

At the time the public inquiry brief was prepared (9 February 2023) Darron Burns was the nominated Transport Manager on 4 operating licences. He was nominated on 2 standard national public service vehicle licences, viz. PG2044929 Yellow Travel Wrexham Ltd, authorising 1 vehicle and PC2061473 Albatross Cars Derby Ltd, authorising 5 vehicles. He was also nominated on 2 standard national goods vehicle licenses, viz. OD2052737 Zenobiu Transport Ltd, authorising 2 vehicles and OD2044048 SVE Transport Ltd, authorising 5 vehicles.

The Driver and Vehicle Standards Agency (“DVSA”) visited the operating centre of Yellow Travel Wrexham Ltd on 9 November 2022 to investigate its systems for complying with operator licence maintenance obligations. Darron Burns had been the nominated transport manager on the licence since it was granted on 8 July 2021. The subsequent report of the DVSA Vehicle Examiner (“VE”) Mark Williams found serious compliance failings which are fully set out in the public inquiry brief. By a call up letter dated 9 February 2023, the operator was called to public inquiry to explore the shortcomings identified in the report. By a call up letter of the same date Darron Burns as transport manager was also called to inquiry to consider whether he continued to meet the requirements to be of good repute and professionally competent, by reference to Schedule 3 to the Act and article 2 of Regulation (EC) 1071/2009 and the European Union (Withdrawal) Act 2018. In addition to the apparent shortcomings identified in the DVSA evidence, the call up letter also highlighted concerns about Darron Burns’ ability to effectively and continuously manage the transport activities of the licences on which he was nominated as transport manager, given the distances between those authorised operating centres located in other Traffic Areas. The closest was some 39 miles distant and the other two were each located approximately 75 miles from Yellow Travel Wrexham Ltd’s sites. The call up letter incorrectly referred to a total of 6 vehicles across the 4 licences, but it was subsequently clarified that the total authorisation across all 4 licences was for 13 vehicles. However, it was not the number of vehicles that gave rise to concern as set out, but the geographical location of Darron Burns in relation to the operator’s business and all operating centres on all licences for which he was responsible as transport manager.

3. Hearing

The Public Inquiry was called on 14 March 2023 at the Office of the Traffic Commissioner for Wales in Caernarfon. Darron Burns attended and Christopher Jackson, sole director of Yellow Travel Wrexham Ltd, attended on behalf of the company. At the start of the inquiry, Christopher Jackson indicated that he intended that Darron Burns would represent the company in the proceedings. I refused that request because Darron Burns was himself a party to the proceedings and was called to the public inquiry in his own right to consider his repute and professional competence as a transport manager. I allowed an adjournment of the proceedings to give the operator a further opportunity to seek legal advice and representation at a relisted hearing. The public inquiry was relisted for 23 May 2023, however the operator requested an adjournment of that hearing, which was granted, and the hearing was relisted again for 5 July 2023.

A further request to adjourn the 5 July 2023 hearing was received from the operator, which I refused, and I granted permission for David Jackson to attend the inquiry on its behalf (following a request from the operating company). The company confirmed that David Jackson would attend and was authorised to speak on its behalf and make decisions, including those which involved expenditure. At 07:14am on 5 July 2023, the morning of the reconvened public inquiry hearing, my office received an email from Darron Burns requesting an adjournment of the proceedings. His email request was referred to me shortly before the hearing commenced. At 10am on 5 July no persons were present on behalf of the operator or the transport manager. The public inquiry commenced at 10:15am, allowing a further 15 minutes for the company representatives to arrive late. However, nobody attended and nor did the company contact my office to explain that David Jackson would not, in fact, be attending. I determined that it was in the public interest to proceed with the inquiry in relation to the alleged operator licence compliance failings by the company which were serious and having regard to the history of adjournments, my refusal of the operator’s latest request and balancing the clear road safety risk to passengers and the travelling public. In considering Darron Burns’ request for an adjournment, I had regard to the fact that this was his first request for an adjournment of proceedings and that he was apparently unable to attend due to health issues. I agreed to his request and adjourned the inquiry to consider his repute and professional competence.

I proceeded with the public inquiry hearing in respect of the operator and made findings based on the evidence before me (set out in the written confirmation of my oral decision given at the public inquiry on 5 July 2023) and on the balance of probabilities. The balancing exercise I undertook is set out in that written confirmation with the reasoning for my decision, which was to revoke the operator’s licence with effect from 23:45 hours on 5 July 2023 and to disqualify the operator from holding an operator’s licence for a period of 2 years pursuant to section 28 of the Transport Act 1985.

Darron Burns was informed by email on 11 July 2023 that the public inquiry in respect of the operator went ahead as listed on 5 July 2023. He was provided with the written confirmation of my oral decision given at that inquiry and advised that this was served to put him on notice of the findings already made in respect of the operating company. He was informed that the public inquiry to consider whether he continued to meet the requirements of good repute and professional competence had been relisted for 9 August 2023, commencing at 2pm at my office in Pontypridd and that VE Williams would be attending the hearing as a witness. The change of venue from Caernarfon was necessary due to staff availability, although given that Darron Burns lives in Stoke on Trent, neither location was particularly convenient for him.

In an email to my office of 14 July 2023, Darron Burns confirmed that he would attend the inquiry on 9 August 2023 and that he intended to cross examine the DVSA witness, VE Williams, at the hearing. However, at 07:58am on the morning of the relisted public inquiry hearing, Darron Burns sent an email to my office attaching what he described as “my update and inclusion regarding today’s meeting”. In that document, he advised that he would not be attending the public inquiry hearing listed for that day, stating that his mental health had started to suffer, and he was not in the right place to present himself. I considered his letter and asked my clerk to inform Darron Burns that the hearing would proceed in his absence. VE Williams was stood down from attending the inquiry given that neither Darron Burns, nor any representative on his behalf, would be attending to challenge his evidence. The letter from Darron Burns makes some very serious allegations about the DVSA Vehicle Examiner, Mark Williams. My clerk advised Mr Burns by email that those allegations are not a matter for me and would not be dealt with at the public inquiry hearing. Darron Burns was advised that any such allegations should be raised through the appropriate channels and that, should he wish to make a complaint about a vehicle examiner, he should do so by contacting the DVSA directly, not the Office of the Traffic Commissioner.

The public inquiry hearing was called at 2pm on 9 August 2023. I explained that I would consider all the evidence before me, comprised in the public inquiry brief, the update report of VE Williams dated 9 March 2023 (which was served on Darron Burns in advance of the inquiry hearing on 14 March 2023), and the correspondence received from Darron Burns that morning (his “update and inclusion” document). I indicated that I was reserving my decision and would issue a written decision as soon as possible.

4. Evidence

The original call up letter required Darron Burns to send documentation to VE Williams at least 14 days prior to the public inquiry hearing – i.e., by 28 February 2023. Specifically, the call up letter required at least the following documents: the regular safety inspection records for the previous 3 months; driver daily defect reports for the previous 3 months; maintenance contract; forward planner; and anything else to show that he is a compliant transport manager or is taking steps to address the failings identified. The call up letter also stated that, if he wished to submit any written representations or evidence that he wanted me to take into account at the hearing, these must be submitted seven days in advance of the hearing – i.e., by 7 March 2023.

The DVSA evidence is included in the public inquiry brief at pages 25 to 53 and comprises VE Williams’ maintenance investigation visit report (“MIVR”); a letter from Backhouse Jones Solicitors dated 22 December 2022, entitled “Response to MIVR” on behalf of Mr Burns in his capacity as transport manager and the operator; and VE Williams’ response to that letter.

I received an update report dated 9 March 2023 from VE Williams (served on Darron Burns in advance of the inquiry) in which he commented on the documents he had received from Darron Burns, noting that these had been submitted to him after the deadline and that not all the required documents had been sent – specifically safety inspection records, the maintenance agreement and the forward planner were missing.

No written representations or evidence was submitted by Darron Burns in advance of the inquiry hearing, as invited in the call up letter by the deadline of 7 March 2023. The only representations received from him were submitted on the morning of the re-listed inquiry hearing on 9 August 2023 – his “update and inclusions” document referred to above, at paragraph 7 (“letter of 9 August”). However, rather than setting out evidence to demonstrate that he is a compliant transport manager or what steps he has taken to address the failings identified, that document instead seeks to impugn the competence and honesty of VE Williams and makes serious allegations about him. Those allegations were not made in the response to the MIVR from Backhouse Jones solicitors who were instructed by Darron Burns to make that response on his behalf in his capacity as transport manager, as well as on behalf of the company. Indeed, that response accepted that more stringent checks on driver walkaround checks, driver defect reporting and analysis of safety inspection sheets could have been done. It stated that VE Williams’ visit, and the shortcomings identified, highlighted that more needs to be done to ensure a compliant operation. It then went on to explain steps that were being implemented in response. Some of those measures related specifically to Darron Burns, namely the response accepted that the Transport Manager Refresher course he had completed did not cover all aspects relevant to a PSV operation and, appreciating those differences, it stated that Darron Burns would complete a secondary refresher course in January 2023. However, no evidence has been provided to demonstrate that Darron Burns has done so. Darron Burns was required to complete a transport manager refresher course by way of an undertaking on the operator’s licence at the time of licence grant. The undertaking attached to the licence is in standard terms for all operator licences and refers to “PCV/LGV”. Darron Burns asserts that my office “stated I must complete either HGV/PSV Refresher course” but he has not provided evidence to substantiate that, and I do not accept that he was told that. He was required to complete the training as a condition for being accepted as nominated transport manager on the Yellow Travel Wrexham Ltd PSV licence. It is self evident that he was expected to complete the refresher training appropriate and relevant to that role. From his letter of 9 August, it appears that he has still not done so. There is also a reference in the Backhouse Jones response to training for Darron Burns that had been put in place through BackAcademy but, again, no evidence has been provided to show what it covered or that it was completed. Specific commitments were made about what Darron Burns would do going forward in terms of auditing walkaround checks – again, no evidence of “gatehouse checks” or auditing by Darron Burns has been provided to demonstrate that has been done. His letter of 9 August now appears to dispute that the operator’s vehicle did not have the correct test certificate for public service vehicles. However, the response to MIVR from Backhouse Jones accepted that the vehicle had the wrong class of MOT. The apparent change in Darron Burns’ position is made very late and, by deciding not to engage with this public inquiry process by failing to attend, he has passed by the opportunity of presenting his own evidence in that regard and of challenging the DVSA evidence which he now apparently disputes.

Darron Burns’ letter of 9 August states that he is no longer transport manager on any operator’s licence, having removed himself from the other three licences on which he was nominated. That was confirmed by my clerk who checked the licensing records during the inquiry hearing on 9 August. I noted that, prior to the revocation of Yellow Travel Wrexham Limited’s licence, the information held by OTC confirmed that Darron Burns had committed to 19 hours per week as transport manager across all 4 licences. He has provided no information in response to the concern raised in the call up letter about the distances between the operating centres, the length of travelling time involved and how many visits he made to those operators. He has provided no information about whether he has any other employment, nor about whether he would wish to act as a transport manager again in the future. Crucially, he has presented no evidence to demonstrate that he continues to fulfil the requirements of transport manager by demonstrating how he effectively and continuously manages or managed the transport operations for the licences on which he was nominated.

5. Findings of fact

The findings I have already made in respect of the operating company are set out in the written confirmation of my oral decision given at the public inquiry in relation to Yellow Travel Wrexham Ltd on 5 July 2023, which should be read together with this decision. I do not repeat those findings here. That decision was served on Darron Burns on 11 July 2023, so that he was placed on notice of my findings in advance of the rescheduled inquiry. I am satisfied in light of those findings, on all the evidence before me and on the balance of probabilities that Darron Burns failed to exercise continuous and effective control of the operator’s transport operations. The serious failures found by the DVSA happened on his watch as a professionally qualified transport manager. The documentation provided to the DVSA by Darron Burns for the purpose of the inquiry hearing when it first called on 14 March 2023 was inadequate and demonstrated a continuing lack of compliance, particularly in relation to driver walkaround checks and maintenance inspection and reporting. Darron Burns has failed to demonstrate that he has complied with his duty effectively and continuously to manage all the transport activities of Yellow Travel Wrexham Ltd’s transport operation, as required by the legislation. He has provided no explanation or mitigation for his failings, instead criticising the VE from the relevant enforcement agency and impugning the VE’s integrity and professionalism in his letter of 9 August. He chose not to attend the inquiry and so passed up the opportunity of giving evidence and challenging any evidence before the Tribunal which he disputed.

6. Balancing exercise and decision

In considering the good repute of Darron Burns as transport manager I performed the same balancing exercise set out at paragraph 26 of my decision in relation to the operator and concluded that no transport manager presiding over that degree of non-compliance could retain his repute. The negative features were serious, as set out. I have carefully considered whether there is any evidence of positive features to be weighed in the balance. The response to MIVR in December 2022 identified measures that apparently had been put in place following the DVSA visit and training that Darren Burns would be undertaking. However, I have not been provided with any documentary evidence to demonstrate that the training was undertaken by him. By the time of the inquiry hearing in March, the evidence demonstrated that the compliance failings in respect of maintenance inspections and driver walkaround checks persisted and the compliance review that the operator had apparently committed to “in the New Year” was not evidenced. Darron Burns was put on notice of his failures and was afforded a chance to demonstrate that he could effectively carry out his obligations as transport manager after the MIVR and, again, after the update report of the DVSA in March 2023. He has failed to do so. The role of the transport manager is a key one which Darron Burns has failed to fulfil effectively, resulting in a clear risk to road safety.

Darron Burns has not provided any evidence about his personal circumstances, how long he has been involved in the transport industry, nor when he originally qualified as a transport manager. I am aware from the DVSA evidence that he competed a transport manager CPC refresher course, expressed to be intended for road haulage managers, in September 2021. Whether his failings were due to the fact that he was unable effectively and continuously to manage the transport operation because he lives in Stoke on Trent and was also transport manager on licences with operating centres some distance from Yellow Travel Wrexham Ltd’s centres, I am unable to determine, because he has not provided any evidence in that regard. He has failed to meet the expectations that the public rightly have of him as transport manager to ensure that PSVs are operated safely and legally.

In considering whether his good repute is lost, rather than merely tarnished, I cannot avoid the comments of the appellate Tribunal in Andrew Harris trading as Harris of Leicester (2014/050): “Given the importance attached to operators complying with the regulatory regime and given that transport managers must: “effectively and continuously manage the transport activities of an undertaking holding an operator’s licence”, it seems to us that whether or not an individual has the character, personality, ability and leadership qualities to ensure compliant operation as an operator or to effectively and continuously manage the transport activities as a transport manager is a factor which can properly, be taken into account when assessing good repute.” The Tribunal has confirmed in Angus Smales trading as Angus Smales Eventing (2014/058), that being transport manager is far more than just holding the qualification. I find that Darron Burns has not demonstrated the ability to meet the statutory duty and that continues to be the case. In the circumstances, and as was confirmed in Matthew Reynolds (2015/049), I must find that he has lost his repute as transport manager and no longer satisfies the requirements of paragraph 1 of Schedule 3 to the Act. I have considered whether such a finding would be a disproportionate response but have determined that such a finding is entirely appropriate and indeed inevitable on the evidence before me.

Having concluded that Darron Burns’ good repute is lost I must also disqualify him under paragraph 7B(2) of Schedule 3 to the Act from acting as a transport manager on an operator’s licence. I am unable to set any appropriate rehabilitation measure as Darron Burns failed to attend the hearing or explain his circumstances. Given that he has now resigned as transport manager on all licences, I assume that there will be no adverse financial implications for him as a result of the disqualification. I consider that disqualification for a period of 2 years is proportionate and appropriate in the circumstances. That disqualification will commence at 23:45 hours on 21 August 2023.

Victoria Davies

Traffic Commissioner for Wales

18 August 2023