Decision

Impounding: Written decision regarding an impounding by the Traffic Commissioner for the Eastern Traffic Area for Georgia Kelly Ash

Published 28 December 2022

0.1 In the Eastern Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Impounding Hearing: In respect of the application by Georgia Kelly Ash. (“the applicant”) for the return of VEHICLE REGISTRATION NUMBER: X4GKA

2. Background

Vehicle X4GKA, was impounded by the DVSA at Donington Services, Junction 23A, M1 Derbyshire on 10 September 2022 at 10.00am. At the time of the stop the vehicle was laden with household goods. The vehicle was erroneously described as a DAF 1824 rigid heavy goods vehicle in some of the Respondent’s documentation. It was accepted at the hearing that the vehicle is a Mercedes Actra, with a gross maximum weight of 18,000kg.

3. The Law

Section 2(1) of the 1995 Act provides that no person shall use a goods vehicle on a road for the carriage of goods:

a) for hire or reward; or

b) for or in connection with any trade or business carried on by him, except under a licence issued by this Act.

The Goods Vehicles (Enforcement Powers) Regulations 2001, as amended allow for the detention and disposal of vehicles, which are not being operated legally. The Regulations also provide the limited grounds upon which an application can be made to a traffic commissioner for the return of the vehicle.

The owner of a detained vehicle may within that specified period apply to the traffic commissioner for the area in which the vehicle was detained for the return of the vehicle.

4. The Application

An application for return of the detained vehicle was received in the Office of the Traffic Commissioner in Eastbourne on 4 October 2022, within the deadline of 7 October 2022. The application referred to the owner as Georgia Kelly Ash, with a correspondence address of GKA Transport Ltd, UBF Industrial Estate, Bicester Road, Aylesbury, HP18 0JX. An email address of [REDACTED] was also provided. In Section 4 the applicant has requested that a hearing be arranged ‘if written application not accepted’.

The application was made under Ground b) namely that “It was not being, and had not been, used in contravention of section 2 of the 1995 Act” and Ground c) that “I did not know that it was being, or had been, used in contravention of section 2 of the 1995 Act”.

5. The Hearing

As per appellate Tribunal decision in 2005/542 James Thorogood, 2009/417 James Innes t/a JC Innes & Sons, 2013/037 UK London Skip Hire (Barking) Ltd, I determined that a hearing was required. The Hearing was originally listed for 14 November 2022, but the applicant requested an adjournment. It was relisted for today, 15 December 2022 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge.

I previously issued Directions for the exchange of evidence so that the accompanying documentation referred to by Examiner Carpenter would be supplied to the applicant, (as set out at pages 21 to 38 of my bundle) and for the applicant to lodge proof of ownership and any statements of witnesses she wished to call. That Direction was not complied with.

The adjournment and directions required me to extend the prescribed periods in order for this case to be dealt with fairly and justly as per the provision under Regulation 23.

6. The Evidence

Section 6 of the application records the following statement:

“I have recently taken ownership of vehicle X4 GKA as I am starting a transport company focusing on transporting palletted belongings for companies. My company is yet to start trading.

I used said vehicle on the date in question to help my Cousin and Uncle move house, a family member and this was not for any money/nor any reward. I hold my Class 2 drivers licence. I did explain this to the office who stopped me but he wouldn’t accept my explanation. This journey was on a weekend, Saturday, an for private use. The loss of this vehicle would set me back enormously with starting my business.”

6.1 Respondent’s evidence

The statement provided by Traffic Examiner Carpenter was adopted as her evidence. This referred to Saturday, 10 September 2022, when she was on duty at Donington Services on the M1 in Derbyshire.

At around 10:30 hours she was in a marked DVSA stopping vehicle driven by uniformed stopping officer Peter Cotgreave. The statement explains that they had grounds to stop vehicle X4 GKA. The Examiner described that the vehicle failed to comply with directions, causing them to have to re-enter the motorway and in front of vehicle X4 GKA. It then slowed and had to be directed to keep up with the DVSA vehicle. It was directed into the site at Donnington Services.

Traffic Examiner Carpenter outlined the exchange with the driver, identified as the applicant Georgia Kelly Ash. Miss Ash claimed that she thought that the instruction board read: “Don’t Follow Me”. There were two passengers present, although the vehicle should only seat two people. The third was lying on the bunk in the back of the cab but unrestrained. There was no signwriting on the vehicle, but it was possible to make out some lettering that had been previously removed. There was no Goods Vehicle Operator’s Licence on display.

Checks were made with the driver, and it was confirmed that the vehicle was loaded with what appeared to be the contents from a residential property. The driver stated that she had started her journey in Aylesbury to Derby with goods belonging to her aunt who was moving house. She claimed that this was a personal journey. The driver provided her driving licence but was unable to provide her Driver Qualification Card. A search of the records found that

she did not hold a valid CPC qualification. The driver confirmed that she was not recording her journey on a tachograph card or by any other means. It was explained that there is no derogation for personal use in a vehicle of that size.

The driver was asked to identify the owner. She referred to “DAC Removals and Storage Ltd” and that Abbey Brown was her employer. The driver and one of the passengers were wearing black uniforms with white detail referring to “DAC Removals” on the chest of the t-shirt and back of the jackets. When asked again, the driver apparently admitted that this was a business-related journey on behalf of “DAC Removals and Storage Ltd”. The driver was unable to produce any documentation for the vehicle, or the journey. Further checks revealed that an Operator’s Licence held by DAC Removals and Storage Ltd (OF1147755) had been revoked on 1 November 2021. The Examiner states that the former operator would have been advised of the powers provided by The Goods Vehicle (Enforcement Powers) Regulations 2001, as amended.

The Examiner checked the tachograph unit and found that it was not fitted in accordance with legal requirements. The vehicle was previously registered as BV65 HRZ and had not been specified on an Operator’s Licence since 13 May 2021. Nevertheless, the Examiner noted its use and found occasions when it had been used without a card inserted on 15, 18, 22, 23, 24, 30, 31 August and 6, 8, 10 September 2022. The Examiner also confirmed that

the vehicle had not been locked into a company since that previous operator.

The Driver was said to have been alerted to the Examiner’s concerns that the vehicle was being operated without the authority of a goods vehicle operator license contrary to Section 2 of the Goods Vehicle (Licensing of Operators) Act 1995. The Driver was cautioned but declined to be interviewed under caution at that time and signed to that effect and to confirm that she had been issued with the impounding paperwork. The Examiner referred to a conversation between the driver and who she believed to be Abbey Brown, director of DAC Removals and Storage Ltd. Mr Cotgreave apparently spoke to Ms Brown and was heard to explain the situation. She apparently agreed to collect her staff members but was unable to collect the relevant goods.

In cross-examination by the Applicant, it was denied that the Examiner had been told that the journey was for DAC and that company. The Examiner confirmed that Ms Ash had initially told her that she was engaged in a personal journey, carrying goods for her Aunt. The Examiner described Ms Ash as overwhelmed at the time and accepted that she may have been confused.

6.2 Applicant’s Evidence

An email from the applicant dated 14 December 2022 suggested that she would supply the V5 document for the vehicle in question. On the morning of the hearing, I was served with an unsigned and undated statement purporting to have been supplied by Mrs Abbey Brown, as follows:

I, Abbey Brown of Harpenden Removals can confirm that on 7 September 2022 gifted Miss Georgia Ash with vehicle X4 GKA, A Mercedes Actros.

Georgia has been working for DAC Removals and Storage as a porter and is now opening her own company GKA Transport and becoming her own boss, terminating her employment with DAC.

I can confirm that there is no connection between DAC Removals and GKA Transport nor Harpenden Removals and GKA Transport.

I was the previous owner of the vehicle but never got to use it due to my personal; circumstances changing and health issues USE, my company Harpenden Removals is dormant and not traded since registering and DAC Removals has changed course since losing its operators licence. The businesses primary focus now is the storage side and some local, small moves and house clearances using vans.

My intention was to always gift Georgia with this vehicle and she registered her number plate to the vehicle. All of my vehicles, even my car, is sign written with the company logo and DAC number plates as part of the branding. This vehicle in question is branded with a GKA number plate and the body is plain ready for Georgia to sign write if she wishes.

Georgia is an honest person who deserves to do well and I wish her all the best in starting her company.

There has clearly been a huge misunderstanding here and due to the fact that the log book was only sent off to the DVLA informing them of new ownership only a matter of a couple of days before this incident occurred, it’s not surprising that their systems hadn’t been updated with the new ownership, that combined with the continuing postal strikes etc. Georgia was in full possession of the new owners log book slip on 07 September 2022 when I handed over full ownership and responsibility of the vehicle.

I was then provided with a signed version, dated 9 December 2022. The applicant also produced the “New keeper slip” from the V5C. It refers to X4 GKA. It has been completed with a transfer date of “07 09 22”. The slip indicates that new V5C would normally be issued within 4 weeks of the previous registered keeper providing the new owner’s details.

I was also provided with a document which was headed “Hearing Defence”. It denies that Ms Ash stated that the journey was on behalf of DAC and claims that she informed the Examiner that the journey was for personal use. She further states that DAC Removals does not operate business on a Saturday and Sunday. It alleges that the pocketbook entries have twisted her words as the journey was unconnected with DAC Removals. It suggests that Ms Ash was frightened by the circumstances of the stop and did not really understand what was being said to her. She refers to being cautioned and the suggestion of an interview. As she did not understand what was happening, she refused to be interviewed.

Ms Ash did not deny that she was wearing a DAC t-shirt, which she said she wears for dirty jobs. The tachograph was not locked into GKA as she had only taken possession of the vehicle on 7 September 2022. She is unable to answer for the previous use of the vehicle or anything to do with DAC Removals. There was not opportunity to have the unit updated or time to have the logbook name changed. She apologised for her use of the vehicle and refers to personal use. She indicates that she has now gained a Certificate of Professional Competence and is proud of that achievement and for having gained an HGV entitlement.

In response to questions, Ms Ash thought that the V5C had been sent to DVLA a couple of months ago. She was unable to recollect whose insurance would have covered the journey. She accepted that she had not mentioned the question of ownership when questioned at the time of the vehicle stop. She was not prompted to mention her ownership even when questioned about DAC on 10 September 2022. She accepted that she contacted Mrs Brown regarding the seizure of the goods rather than her Aunt and Uncle. She called Mrs Brown because they are pretty close and to tell her the situation. Mrs Brown tried to calm Ms Ash.

7. Findings

As I explained to both parties, the relevant standard of proof required is on the balance of probabilities.

I also explained that the onus for proving ownership lies with the Applicant. The application asserts that the Applicant is the lawful owner of the vehicle. I refer to the summary of the relevant case law in the Senior Traffic Commissioner’s Statutory Document No. 7. As per the Upper Tribunal Decision in 2011/029 David Pritchard, it is for the applicant to prove ownership of the relevant vehicle before I am required to consider other issues, although it might be appropriate for me to hear all the evidence.

It was necessary for me to consider the circumstances and whether the Respondent (DVSA) had reason to believe that the detained vehicle was being or had been used on a road in contravention of the legislation. There appeared to be no issue that the 18-tonne vehicle was stopped on Saturday 10 September 2022, and brought into Donnington Services on the M1 and that it was not specified on an Operator’s Licence. In the event there appeared to be little dispute as to the circumstances of the stop. The application confirmed that two other passengers were present, neither of which were called as witnesses. There was no issue that the vehicle was loaded with furniture and personal belongings and that no Goods Vehicle Operator Licence disc was displayed. The Examiner recounts Ms Ash’s explanation of moving house for her aunt. She was not carrying a Driver Qualification Card or recording her hours. The absence of a derogation is not strictly relevant to this determination. I noted the dates of use relevant to the said date of transfer.

It was accepted that the Applicant referred to a personal journey, but the circumstances pointed to use of a vehicle connected to businesses with which Mrs Brown is connected. Ms Ash accepted that she omitted any reference to a change in ownership of the vehicle during the stop process. Mrs Brown’s statement acknowledges what the official records would not have shown any transfer of the vehicle. In all the circumstances described, I am satisfied that those acting on behalf of the Respondent had reason to believe that the vehicle was being, or had been, used on a road in contravention of the legislation.

As a matter of law, a logbook/registered keeper check is not conclusive evidence of ownership. Even that is not present in this case. It is now over 3 months since the alleged transfer. There is no financial evidence showing that money was used to purchase the detained vehicle. The email from the applicant dated 8 November 2022 explains that the vehicle was gifted to the applicant so there is no receipt. I refer to the statement from Mrs Brown, above. Mrs Brown did not attend to give evidence and was not tested under cross-examination. Inconsistencies in the evidence relating to the date of registration from BV65 HRZ, the date of transfer and the absence of any reference to conversations with the Examiners, could not be put to the witness by the Respondent. These are inter-parties proceedings, with the onus being on the Applicant to produce her evidence. I find that I can attach little weight to the document said to have been signed by Mrs Brown, particularly where the transfer was not mentioned at the time of the stop.

As is apparent from the case law, the correct test is whether the applicant can then produce sufficient evidence to satisfy me upon the balance of probabilities that she is the owner, not whether there is credible evidence that the vehicle is owned by anyone other than the Applicant, as per the appellate Tribunal decision in 2012/053 Clayton Car Sales Ltd. In all the circumstances described in evidence, the Applicant has failed to discharge the burden to prove her ownership of the vehicle, to the civil standard of proof. As a result, the application for return of the vehicle must fail.

R Turfitt

Traffic Commissioner

15 December 2022