Decision

Decision for Zlatko Mitrov t/a Z M Services (OD1133623) & UK Vans & Parts Ltd (OD2069128)

Published 14 May 2024

0.1 In the West Midlands Traffic Area

1. Written Decision of the Traffic Commissioner

2. Public Inquiry held on 04 April 2024 at Birmingham

3. Operator: Zlatko Mitrov t/a Z M Services: OD1133623 & UK Vans & Parts Ltd: OD2069128

4. Background

As a result of a DVSA stop of vehicle BG64 VNL (a 7.5 tonne flatbed lorry) on 27 June 2023 it was discovered that the vehicle had no MOT (the MOT had expired on 28 February 2022 some 484 days before the DVSA stop) and the tachograph machine was not calibrated, the vehicle was not listed on any operator’s licence and the driver, Mr Zlatko Mitrov, did not have a valid driver qualification card because his driver CPC had expired 1,325 days before the stop (it expired on 10 November 2019) and the tachograph machine was not being used. At the time Mr Mitrov is said to have told the DVSA stopping officer that the vehicle was being operated by UK Vans & Parts Ltd.

Mr Mitrov was interviewed under caution at the time of the stop and is recorded to have said, amongst other things:

Q        What load are you carrying today?

A      A van

Q        Who owns the vehicle that you are transporting?

A          UK Vans and Parts Ltd

Q   What was your plans for the vehicle that you are transporting?

A    To be fixed if it needs fixing, cleaning add value and sell it for a profit

Q  How often do you use this vehicle for journeys to collect vehicles you are planning to sell?

A  Sometimes when I don’t have anyone to bring it back otherwise we are using our trade plate

Q  Records show that vehicle BG64 VNL has an expired MOT and that the test was due to be done by 28/2/2022. Can you confirm if you were aware of this?

A    No to be honest

Q   How long have you owned the vehicle?

A   Either 2020 or 2021.

An application for a standard national goods vehicle licence was made by UK Vans & Parts Ltd under reference OD2069128 after this DVSA stop.

No interim operator’s licence was ever granted to UK Vans & Parts Ltd.

As a result of the stop on 27 June 2023 Mr Mitrov was prosecuted by the DVSA and was convicted of two offences; failing to use a tachograph record and no MOT for vehicle BG64VNL. He detailed these convictions on the GV79 application form for UK Vans & Parts Ltd.

As a result of the evidence received from the DVSA I decided to call Mr Mitrov, and his sole trader restricted goods vehicle licence (OD1133623) to a regulatory public inquiry and the application made by UK Vans & Parts Ltd (OD2069128) to the same public inquiry.

The call up letter for both entities was dated 29 February 2024.

5. Public Inquiry at 1000 hours on 04 April 2024.

Mr Z Mitrov attended the hearing with his proposed transport manager for UK Vans & Parts Ltd. The DVSA had not been asked to attend.

Absolutely no documents, in response to the call up letter and Case Management Directions, had been received from Mr Mitrov for his sole trader licence. As a preliminary matter I questioned this and was told by Mr Mitrov that the sole trader business and the sole trader operator’s licence had not been used for several years and was not in use as at the date of the public inquiry.

I clarified with Mr Mitrov the documents that had been submitted for UK Vans & Parts Ltd. I proceeded to then explain how the hearing would be conducted.

I heard from Mr Mitrov in evidence and also from his proposed transport manager.

There was a short adjournment in the hearing for Mr Mitrov to obtain a photograph of the odometer reading for vehicle BG64 VNL. This created a new issue and as a matter of fairness (explained further in the body of this decision) I allowed Mr Mitrov 7 clear days to respond to it and also a further 7 clear days to respond to the ANPR data that I subsequently obtained from the DVSA and served on Mr Mitrov.

As a result my decision was reserved into writing so that it would not be considered before 1400 hours on 15 April 2024 so that I could take into account any further evidence and any response received from Mr Mitrov.

6. Burden and standard of proof

The DVSA had the burden of proof for any allegations it had made. The standard of proof is the civil standard; the balance of probabilities (what is more likely than not to have occurred).

For the assertion made by Mr Mitrov that there must be a fault with the odometer for vehicle BG64VNL he bore the burden of proof to satisfy me that it was more likely than not that a fault was present that materially adversely effected the distance recorded as having been travelled for that vehicle.

In any application for a goods vehicle operator’s licence the applicant bears the burden of proof, throughout the application process, to satisfy the Traffic Commissioner that it met the legal requirements set out in section 13 of the Act.

7. Findings of fact

The convictions stand and cannot be challenged because (a) they are matters proven to a higher standard of proof in a criminal Court and because (b) they have not been appealed (or overturned on appeal).

Those convictions (as detailed by Mr Mitrov on the GV79 application form) prove that it is more likely than not that Mr Mitrov was required by law to comply with EU drivers hours on 27 June 2023 when he was stopped and that the vehicle was being used without an MOT when an MOT was required.

The principal business of UK Vans & Parts Ltd is to buy and sell vehicles/vehicle parts. Companies House records “45112 - Sale of used cars and light motor vehicles 45320 - Retail trade of motor vehicle parts and accessories.” UK Vans & Parts Ltd is not involved in emergency recovery work and it is not an emergency recovery service provider.

Vehicle BG64VNL was being used in the course of the operator’s business on 27 June 2023.

The vehicle it was transporting on the back of BG64VNL was owned by UK Vans & Parts Ltd.

UK Vans & Parts Ltd has never held any type of operator’s licence.

The sole trader restricted operator’s licence held by Mr Mitrov had not been used for several years before the stop on 27 June 2023.

That sole trader licence could not, ever, have been used to transport any goods owned by UK Vans & Parts Ltd because a restricted operator’s licence cannot be used to transport goods owned by another legal entity.

That sole trader licence had not been used for several years before the public inquiry.

Mr Mitrov’s claim that he was exempted from needing an operator’s licence if he used a trade plate is misconceived and without any legal foundation. A trade plate will not exempt the user of the vehicle from the requirement to have a valid operator’s licence in force when a vehicle over 3.5 tonnes is being used commercially on a public road to carry goods. A trade plate can only apply if the vehicle being used is unladen and then in very prescribed circumstances.

Here vehicle BG64VNL (a 7.5 tonne flatbed lorry) was being used commercially by UK Vans and Parts Ltd on 27 June 2023 as confirmed by Mr Mitrov in his interview under caution.

Mr Mitrov’s claim that he was exempted from needing a driver CPC qualification to drive vehicle BG64VNL on 27 June 2023 is misconceived and without any legal foundation. In the hearing I went through all of the legal exemptions, as recorded on the Gov.UK website, with Mr Mitrov. None of them applied and none of them could ever have applied to him from the facts in this case. That would have been obvious had he looked up the exemptions (he told me that he had never done that) or taken advice (he told me that he had never done that) either from a lawyer or transport consultant if there was any doubt.

Vehicle BG64VNL was used for 484 days without a valid MOT when Mr Mitrov had said in his interview under caution that it had been used “sometimes” on a public road (and it certainly was used on a public road on 27 June 2023) when there was no legal basis to do so. Hence the conviction in the criminal court. I do not accept any assertion that Mr Mitrov would not have known that this vehicle was out of MOT for such a long period of time.

Mr Mitrov was using an in-scope vehicle when he did not hold a driver CPC as required by law and had not done so for 1325 days before the stop on 27 June 2023. I do not accept that he did not know, or could not reasonably have been expected to have known, that a driver CPC was required. He openly told me that he did not make any real enquiry to establish as fact whether one was required or not at the time of the DVSA stop.

Mr Mitrov did not know how many miles vehicle BG64VNL had driven since the stop on 27 June 2023. He told me that it was parked up, then he thought it might have been used occasionally but not for commercial reasons. I found that it was odd, given he was the sole director, that he did not know how much that vehicle had been used. Why would he not know? To help answer the question of how much that vehicle had been used I asked him to get someone back at the yard to send a photograph of the odometer to him and for that photograph to be passed to me. I rose for 15 minutes to allow him to do that.

The result was shocking. The photograph of the odometer revealed that since the vehicle was put though an MOT on 13 July 2023 (that was the nearest odometer reading I had to the stop on 27 June 2023, see page 48 of the public inquiry bundle) up to the date of the public inquiry the 7.5 tonne flatbed lorry had travelled 27,931KM.

Mr Mitrov then changed tact in his evidence and thought the odometer might be faulty as he said he could not explain how the vehicle could have travelled that far. As this was a new issue I agreed to allow him 7 clear days to obtain, from an MOT certified garage, evidence to show that the odometer was faulty in a material way that would have adversely effected the mileage recorded upon it. Since Mr Mitrov worked in the vehicle industry a 7 clear day period of time was more than long enough to approach colleagues, friends and contacts in the repair/garage industry to help find a suitable garage or for him to approach any other garage in England that was available to obtain such evidence.

I also said I would ask the DVSA to undertake an ANPR exercise for vehicle BG64VNL for the 6 months before the public inquiry with a copy served on him and for 7 clear days to be given for Mr Mitrov to comment on any findings. That way I could ascertain what was more likely than not to have happened.

I also said the operator could send in any further evidence, not already submitted, of third party haulage it had used if it wanted to.

At the very end of the hearing I asked Mr Mitrov twice if he had lied to me in the hearing about how much vehicle BG64VNL had been used since the DVSA stop.

Since UK Vans & Parts Ltd was an applicant with no existing operator’s licence (and therefore had the burden of proof) there was no legal operating history from which I could find positives in order to give the company any meaningful credit. There could not be any positives (and therefore meaningful credit given) for Mr Mitrov’s sole trader licence as it had not been used for several years and absolutely no documentary evidence for it had been produced for the public inquiry.

I heard from Mr Mitrov as to the effect of action against his existing operator’s licence. I was under no obligation to enquire as to what would happen if I did not grant the application made by UK Vans &parts Ltd as there is never a presumption that any application will be granted.

No evidence from a garage to show that the odometer for vehicle BG64VNL was faulty was produced. An email was received, after the public inquiry, to say that Mr Mitrov had not been able to get the evidence in time. He had had more than enough time for the reasons given above. No detail was provided as to which garages were approached by Mr Mitrov and I reminded myself that he had the burden of proof to demonstrate that his allegation about the odometer was more likely than not to be correct. Mr Mitrov has not satisfied me that it was more likely than not that there was a fault with the odometer for vehicle BG64VNL. I formally find it is more likely than not that the photograph of the odometer provided to me in the public inquiry accurately recorded the distance travelled and as a result vehicle BG64VNL had travelled over 27,000KM since it was put through an MOT on 13 July 2023 up to the date of the public inquiry.

The ANPR evidence showed that vehicle BG64VNL had triggered the ANPR cameras on the public road network on 61 different days in the past 6 months. I find that it is more likely than not that this evidence from the DVSA is accurate. I further find that in the email received no reasonable or rational excuse for why a 7.5 tonne flatbed lorry was spotted on public roads on 61 different days has been provided.

That ANPR evidence coupled with over 27,000KM recorded as having been travelled by vehicle BG64VNL over a similar time is more likely than not to be consistent with that vehicle being operated in the course of UK Vans & Parts Ltd business than for any other reason.

And that operation of the vehicle took place after the DVSA stop on 27 June 2023.

And that operation of the vehicle took place after an application was made for an operator’s licence (and you only make the application for an operator’s licence if you know you need an operator’s licence) when it is always made clear in correspondence from the Office of the Traffic Commissioner that there is no lawful authority to operate any vehicle over 3.5 tonnes until the application has been granted.

And the heart and mind of UK Vans & Parts Ltd was and remains Mr Mitrov, the sole director.

He cannot plead any ignorance to the law and rules surrounding operator licensing especially as he was an existing operator. The Upper Tribunal stated in appeal cases such as 2014/024 LA & Z Leonida T/A ETS and 2012/030 MGM Haulage and Recycling Ltd the following.

In MGM Haulage and Recycling Ltd the Upper Tribunal made it clear that operators are deemed to know the advice and guidance that is in the public

domain, for example the Statutory Documents issued by the Senior Traffic Commissioner. Statutory Document zero deals with when an operator’s licence is required for example. The Upper Tribunal were clear in this appeal case when they said an operator cannot say they did not know about such matters.

In the appeal case of LA & Z Leonida TA ETS the Upper Tribunal held that:

“It does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime. That means they cannot plead ignorance or put the blame on the transport manager because they are required to have sufficient knowledge of the regulatory regime to ensure compliance in general and the proper performance of the transport manager’s duties in particular.”

Looking at all of the facts of this case, with regards to the clear longstanding unlawful operation of vehicle BG64VNL after the DVSA stop on 27 June 2023, it was more likely than not that Mr Mitrov falls into one of two categories:

• He was so detached from stopping any operation of vehicle BG64VNL that management relating to that vehicle must have been abrogated to another(s) as no other conclusion could justify him not knowing about over 27,000KM of use by that vehicle and/or the 61 days it was found to be on a public road in the past 6 months before the public inquiry (but after the vehicle was stopped by the DVSA); or

• He was untruthful to me in the public inquiry about how often that vehicle was used.

I had the benefit of seeing him and interacting with him throughout the hearing. He did not come across as someone who did not know what was happening in the business or that he was so detached from the business as its sole director that he did not know, or would not have known, what was happening with vehicle BG64VNL.

Let me be clear, you do not (normally) take a 7.5 tonne flatbed vehicle out for domestic purposes; for a pleasure drive, to do your grocery shopping or to take the children to school on the school run etc. Such a vehicle is, on balance, only going to be used for over 27,000KM and/or on the 61 days shown on the ANPR cameras for commercial purposes.

Looking at all of the evidence before me it is more likely than not that Mr Mitrov was untruthful to me about the vehicle’s use when he was confronted with the photograph of the vehicle’s odometer and when I subsequently robustly questioned him about it.

If I am wrong about that (which I do not accept) then paragraph 51(i) applies which is equally damning to Mr Mitrov as it demonstrates a total lack of management control of vehicle BG64VNL leading to a massive number of offences being committed over the past 6 months.

It is more likely than not that for each of the 61 days it was spotted on the ANPR cameras vehicle BG64VNL was being operated without an operator’s licence and at a time when Mr Mitrov knew that UK Vans & Parts Ltd did not hold an operator’s licence.

I have already given reasons, with appeal case authorities, why Mr Mitrov cannot plead any ignorance to the requirement for UK Vans & Parts Ltd to have needed a valid operator’s licence on each of those 61 occasions.

Mr Mitrov caused or permitted vehicle BG64VNL to be operated on 27 June 2023 without an MOT as detailed above and when it is more likely than not that he knew the MOT had expired 484 days before that stop.

Mr Mitrov drove that vehicle without a driver’s CPC when one was required (as detailed above) and when he knew, or should have known, that a valid driver CPC was required.

Mr Mitrov caused or permitted that vehicle to have a tachograph machine that was not calibrated.

Mr Mitrov failed to make a tachograph record on 27 June 2023 when one was required by law.

Mr Mitrov was untruthful in the public inquiry as I have detailed above. I am satisfied that he knew that vehicle BG64VNL was being operated on all, or on the vast majority, of the 61 occasions detailed above.

8. Decisions

I have already explained (paragraph 40) why no meaningful positives can be found in these two cases and as a result why no meaningful credit can be given.

Looking at Schedule 3 of the Act I have reminded myself at what I can look at to determine if a company is of good repute. From the facts in this case as I have found them to be I am satisfied that it is more likely than not that as a result of the acts and omissions of Mr Mitrov, the sole director, the applicant company, UK Vans & Parts Ltd, is not of good repute.

It is a fundamental requirement that an applicant for a standard national goods vehicle operator’s licence must be of good repute. This applicant is not. The application for a standard national goods vehicle operator’s licence is therefore refused.

The sole trader restricted operator’s licence held by Mr Mitrov has not been used for years. No evidence relating to maintenance, drivers hours or finances were provided in response to the calling in letter and attached Case Management Directions.

The claim that it has no documents because it has not operated misses the point. When the operator’s licence has not been used for years it is, on balance, defunct/otiose and should be surrendered. In this case there was not even any evidence provided that it may be used again in the future. Even more reason to have surrendered it previously.

It was not surrendered and I could not be satisfied that suitable systems were in place to maintain any vehicle that might be operated now, or at any time in the future.

I could not be satisfied that that there were suitable arrangements in place to ensure drivers hours and tachograph rules and laws would be kept if any vehicle were to be operated now or in the future.

As a result it was clear that the following general undertakings on the operator’s licence were breached and/or could not be kept:

• The rules on drivers’ hours and tachographs are observed and proper records are kept, and that these are made available on request; and/or

• Vehicles and trailers, including hired vehicles and trailers, are kept in a fit and serviceable condition

No financial evidence for the past three months had been provided to show that there were sufficient financial resources available to properly maintain any vehicle that may be operated now or in the future. The operator was not of sufficient financial resources as a result.

The acts and omissions of Mr Mitrov, as detailed in this decision from the findings of fact that I have made, are such that I have no hesitation in finding that I do not trust Mr Mitrov to be compliant in the future because he has shown a total disregard to operator licensing laws and to the road traffic laws not least by operating vehicle BG64VNL without an operator’s licence over the past 6 months. I therefore answer the Priority Freight question in the negative. Pulling everything together it is more likely than not that Mr Mitrov is now unfit to hold a restricted operator’s licence.

It is therefore proportionate that the sole trader operator’s licence held by Mr Mitrov, OD1133623, is revoked under section 26(1)(h) of the Act because the operator is now unfit to hold a restricted operator’s licence.

It is also proportionate to revoke the operator licence OD1133623 under sections 26(1)(f) [breach of the general undertakings on the operator’s licence] and 26(1)(h) [material changes since the operator’s licence was granted] of the Act.

All orders of revocation take effect at 2359 hours on 30 April 2024.

9. Disqualification

I now turn to the issue of disqualification. I have considered the Transport Tribunal (as it was before the Upper Tribunal) appeal case of 2006/27 Fenlon where it was held that:

‘trust is one of the foundation stones of operator licensing. Traffic, commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition, operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operator believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.”

I have considered the appeal cases on the subject of disqualification including 2018/072 St Mickalos Company Ltd & M Timinis and 2010/29 David Finch Haulage.

I repeat all of my findings. Having done so this is a case where disqualification is not only proportionate as a reflection of the gravity of what has happened but it is also necessary to send out the right message to the industry that someone who partakes in the unlawful operation of a vehicle over 3.5 tonnes in circumstances such as this will always be met with very robust regulatory action. It also sends out the right message to the members of the public that this jurisdiction serves a legitimate purpose and that it can take regulatory action that acts as a suitable deterrent.

The proportionate regulatory action is that Mr Zlatko Mitrov is disqualified from holding or obtaining any type of operator’s licence in any traffic area, from being a director or partner in any company or partnership that holds or applies for any type of operator’s licence in any traffic area and he is also disqualified from being a majority shareholder in a company that applies for or holds any type of operator’s licence in any traffic area or from being a director, or majority shareholder of a company that is a subsidiary to a company that holds or applies for any type of operator’s licence in any traffic area. These orders of disqualification are made under sections 28(1), (3) and (4) of the Act and the period of disqualification starts at 2359 hours on 30 April 2024 and ends at 2359 hours on 30 April 2026 (a two year period of disqualification).

Mr Mitrov is unequivocally warned that operating any regulated vehicle after 2359 hours on 30 April is a criminal offence which I would ask the DVSA to prosecute in the criminal courts and doing so also empowers the DVSA to impound any vehicle(s) so operated when there was no valid operator’s licence in force. Mr Mitrov now has actual knowledge of the power of DVSA to impound after 2359 hours on 30 April 2024.

Mr M Dorrington
The Traffic Commissioner for the West Midlands

19 April 2024.