Decision

Impounding: Written decision regarding an impounding by the Traffic Commissioner for the Welsh Traffic Area for Densel 17 Transporter SRL with regards vehicle AR14LWZ

Published 10 July 2023

0.1 In the Welsh Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Impounding Hearing: In respect of the application by Densel 17 Transporter SRL (“the applicant company”) for the return of VEHICLE REGISTRATION NUMBER: AR14LWZ

2. Background

On 2 April 2023, vehicle AR14LWZ, a Romanian registered vehicle, was stopped and detained by the Driver and Vehicle Standards Agency (“DVSA”). The background to the detention is set out in the witness statement of DVSA Traffic Examiner (“TE”) Gordon Changata dated 5th May 2023 and, in summary, is as follows:

• The vehicle, an articulated HGV towing a trailer, was stopped at the DVSA checksite, at Ewloe in North Wales on 2 April 2023. The driver, Mr Akturk, confirmed that the vehicle was being used in connection with the applicant company’s business and was on a journey from Holyhead to Dover loaded with beer. The driver provided TE Changata with a community authorisation issued in Romania in the applicant company’s name, but TE Changata noted that it had expired on 22 September 2022. He also noted that the vehicle had entered the UK on 9 January 2023 and had therefore been in the country for 83 days. The vehicle had been encountered on 1 March 2023 and had been given a direction to leave the UK then. Evidence confirmed that it had not done so.

• Given that a cabotage offence appeared to have been committed TE Changata checked the DVSA “cabotage list” and noted that the applicant company had received a pre-impounding warning letter in November 2022 informing it that further cabotage breaches may result in its vehicles being impounded. DVSA then impounded the vehicle under regulation 3 of the Regulations.

An application for the return of the vehicle was made by the applicant company but was received on 28 April 2023 shortly after the application deadline expired. I invoked regulation 23 of the Regulations to extend the deadline by one day to allow it to be considered and to allow the applicant company to submit an application which included the applicant company’s full name and address (the original application simply stated “company”). It relied on the following grounds for the return of the vehicle - ground set out in regulation 4(3)(a) of the Regulations that, at the time the vehicle was detained, the user of the vehicle held a valid operator’s licence (whether or not authorising the use of the vehicle); and ground set out in regulation 4(3)(b) of the Regulations that, at the time the vehicle was detained, it was not being, and had not been, used in contravention of section 2 of the Act.

3. The Hearing

The impounding hearing was listed for 27 June 2023 in Pontypridd. The letter calling the parties to the hearing was dated 15 May 2023. It was sent by post and by email to the applicant company to the postal and email address specified in its application. Having regard to the Senior Traffic Commissioner’s Statutory Document 7 on impounding, I made case management directions to the applicant company which were set out in the letter of 15 May 2023. These were as follows:

“1. The Applicant to provide, by 13 June 2013, evidence that it is the legal owner of vehicle AR14LWZ. Please be advised that a V5C Vehicle Registration document identifies the registered keeper of the vehicle and is therefore NOT sufficient to establish ownership. You should submit evidence of ownership such as a receipt for purchase of the vehicle.

1. The Applicant to provide, by 13 June 2023, the applicant must confirm the identity of the operator using the vehicle and lodge a copy of that operator’s licence with OTC and serve a copy on the Respondent.

2. The Applicant to provide, by 13 June 2023, documentary evidence to the OTC that they were compliant with the cabotage regulations, including the community authorisation, CMRs and tachograph evidence and serve a copy on the Respondent. It is important that all foreign language documents must be supported by a certified English translated copy of that document, or it will not be accepted as evidence by the Traffic Commissioner.”

The applicant company did not comply with the directions, it did not submit any evidence in advance of the hearing and did not return the attendance form to confirm that it would attend the hearing.

I also made case management directions to the Respondent, the DVSA,. These were as follows:

“1. The Respondent to provide, by 13 June 2023, a statement(s) including evidence to include: - a. the circumstances of the impounding b. Why it believes the impounding was lawful (i.e., why it had reason to believe the vehicle was being used in contravention of s2 of the 1995 Act) c. Representations as to why it believes the grounds relied upon by the applicant is not made out The evidence to be copied to the Applicant.”

The Respondent complied with those case management directions and its evidence was included in the Brief for the Impounding Hearing which was served on all parties in advance of the hearing.

The hearing proceeded as listed on 27 June 2023. There was no appearance on behalf of the applicant company. I was satisfied that it had been properly served with the letter calling it to attend the hearing and that it was on notice that the hearing would proceed in its absence should it fail to attend. Traffic Enforcement Manager Simon Jenkins attended the hearing for the DVSA.

Mr. Jenkins asked me to accept the DVSA evidence already submitted and included in the Impounding Hearing Brief at pages 26 to 51, and he made no further representations. I indicated that I would consider the evidence before me and would notify the applicant in writing of my determination as soon as reasonably practicable, and within 14 days.

4. Evidence and Findings

When a vehicle is impounded, establishing lawful ownership is a basic “condition precedent” before any person or entity can make an application to a Traffic Commissioner for its return. That general rule has been repeated by the Upper Tribunal and the onus of proof is upon the applicant company (2012/053 Clayton Car Sales Ltd; 2014/03 Sarah Boyes). The applicant company’s written application did not include any evidence as to ownership of the impounded vehicle. I gave specific directions on the issue of ownership, namely that the applicant company must provide evidence to prove its ownership of the vehicle, as already set out above. It failed to comply with that direction. Within the Impounding Hearing Brief there is a document included with the Respondent’s evidence which the DVSA witness describes as a vehicle registration document (page 33). That appears to be an excerpt of a document, written in Romanian with no English translation, and includes the name of the applicant company. However, even if that is an extract from a Romanian registration document, it is not probative of ownership, as my case management direction made clear. I therefore make a finding that the applicant company has not satisfied me that it was the legal owner of vehicle AR14LWZ at the time it was impounded by the DVSA.

It is clear to me on the evidence that the DVSA examiner had reason to believe that the impounded vehicle was being used in contravention of section 2 of the Act and that the impounding on 2 April 2023 was lawful. The vehicle was registered in Romania. The Community Authorisation which had allowed the operator to carry out international journeys into other European countries (including the UK, under retained EU law) had expired on 27 September 2022, more than 6 months before the impounding. The impounded vehicle had already been encountered at Ashford on 1 March 2023 and a direction notice to leave the UK was issued. The operator failed to comply with that notice and the vehicle was engaged in hire and reward operations when it was stopped again on 2 April 2023. The vehicle had been in the UK for 83 days and was operating in clear breach of the cabotage rules and conditions specified in Article 8(2) of EC Directive 1072/2009.

Even if the applicant company had established ownership, which it has not for the reasons set out above, the evidential burden is on it to prove the grounds relied on for return of the vehicle. By failing to comply with the case management directions or attend the hearing to present its case, it has failed to do so. There is no evidence before me that the user of the vehicle at the time it was impounded held a valid operator’s licence issued under the Act (ground relied on by the applicant company, as set out in regulation 4(3)(a)). It is evident from my findings above that the second ground relied on by the applicant company, as set out in regulation 4(3)(b) is not made out. The impounded vehicle was clearly being used in contravention of the legislation.

5. Decision

• The application to return vehicle AR14LWZ to the applicant company is REFUSED.

Victoria Davies

Traffic Commissioner for Wales

28 June 2023