Decision for AJ Owens Builders Limited (OC2072041)
Written decision of the Traffic Commissioner for the North West of England for AJ Owens Builders Limited
IN THE NORTH WEST TRAFFIC AREA
AJ OWENS BUILDERS LIMITED
WRITTEN DECISION OF THE TRAFFIC COMMISSIONER
ENVIRONMENTAL HEARING HELD AT THE GOLBORNE HEARING CENTRE ON 29 MAY 2025
DECISION:
The application made by AJ Owens Builders Limited, under reference OC2072041, for a restricted goods vehicle operator’s licence to authorise one vehicle and two trailers from the proposed operating centre at Bowden Builders Merchants, 6A Bowden Road, Liverpool, L19 1QP, is REFUSED under section 13(5) of the Goods Vehicles (Licensing of Operators) Act 1995 (the “Act”).
I conclude that the nominated site is not suitable for use as an operating centre as required by Section 13C(5) of the Act.
BACKGROUND
AJ Owens Builders Limited (the “Applicant”) made an application dated 18 February 2024 for a restricted goods vehicle operator’s licence to authorise one vehicle and two trailers under reference OC2072041. The proposed operating centre was at 6A Bowden Road, Liverpool, L19 1QP.
The application attracted a significant number of representations to my office from local residents, as well as an objection from Liverpool City Council as a statutory objector.
Twenty representations were deemed to be duly made from the papers and were treated as valid representations on environmental grounds. A number of other representations were deemed, on the papers, to not meet the standard required to be considered valid. This was due to a combination of late representations or those which were not made on environmental grounds as required in legislation.
The City Council’s objections were made on the basis of environmental concerns as well as road safety concerns.
Due to the interest in the application the Driver and Vehicle Standards Agency (“DVSA”) were asked to undertake a report into the suitability of the proposed operating centre. Traffic Examiners Rourke and Poole undertook an investigation into the proposed operating centre on 03 August 2024. They determined that the proposed operating centre would be suitable for a 7,500kg to be allowed to operate from this yard, with a recommendation that the vehicles enter the site from the left and exit to the left.
Given the number of duly made representations and given the contents of the report received from the Traffic Examiners I initially proposed a number of conditions to try and reach an amicable resolution. This included a maximum vehicle size of 7,500kg, the requirement for vehicles authorised under the licence to enter and exit the site in forward gear and time restrictions on the operation, movement, loading or unloading of authorised vehicles or trailers at the operating centre. These proposed undertakings were accepted by the applicant but refused by a range of representors when their consideration was requested. Accordingly, a public inquiry was convened with invitations issued to the applicant, the statutory objector and all valid representors.
Ahead of the hearing, on 05 March 2025 I undertook my own site visit. I arrived at the location of the operating centre at 08:27am and remained there until 08:40. During my time I observed 18 pedestrians, 56 cars or vans, 1 cyclist and a refuse collection vehicle (bin lorry) which passed the site three times on its rounds. I also familiarised myself with the locations of the valid representors as well as the surrounding area and road network.
Due to a range of changes to the site, including high gates and fence, I was unable to observe the proposed operating centre. I therefore returned later that afternoon with TE Rourke and TE Poole. Both examiners observed that as considerable changes had been made, and were being made at the site, in its current state it would not be considered as suitable for use as an operating centre.
Before the public inquiry I received copies of some reports the applicant had prepared in advance. This included a Noise Impact Assessment, correspondence with Liverpool City Council, a Site Risk Assessment and a Swept Path Analysis showing how vehicles would enter and exit in forward gear using the existing entrance and a newly built exit further along the property boundary. I also received notice that Liverpool City Council, the sole statutory objector, were being legally represented. Papers were shared as necessary.
PUBLIC INQUIRY
The public inquiry was held at the Golborne Hearing Centre on 29 May 2025. The applicant was in attendance by its sole director Mr. Andrew Owens. Liverpool City Council was in attendance by Mr. Andrew Mollon, and was represented by Ms Arevik Jackson. TE’s Rourke and Poole were also in attendance, as were nine of the valid representors.
I commenced by setting out, for the benefit of all in attendance, the limitation of my jurisdiction, highlighting what powers I did have, and what I have no jurisdiction to consider. I also set out what the statutory objector and the valid representors could, lawfully, raise as concerns.
I first heard from the applicant, then the DVSA, followed by Liverpool City Council and then gave time for each representor in attendance to provide their evidence. Mr Owens was then afforded a right of response. I asked supplementary questions to ensure that I had all the information that was required.
I then concluded the Public Inquiry and reserved my decision to writing.
BURDEN AND STANDARD OF PROOF
All applicants bear the legal burden of proof throughout the application process to satisfy the Traffic Commissioner that the application meets the minimum statutory requirements in order for it to be granted. The standard of proof is the civil law standard, the balance of probabilities. In other words what is more likely than not to have occurred or would occur.
The DVSA also have the same burden and standard of proof to prove any allegations that they have made.
The statutory objector and the valid representors must also satisfy the same burden and standard of proof. Representors therefore are required to prove that any of the issues they raised would be capable of prejudicially affecting the use or enjoyment of their land.
MY JURISDICTION
My jurisdiction, and therefore my powers, that relate to hearings such as this come from the Goods Vehicles (Licensing of Operators) Act 1995 and the Goods Vehicles (Licensing of Operators) Regulations 1995 and the caselaw that has developed over the years. This is all summarised and explained in Statutory Document Number 4 issued by the Senior Traffic Commissioner.
In relation to the idea of an “operating centre” I need to explain what that actually is. The definition of an operating centre is the place where vehicles specified on the operator’s licence will normally be parked when not in use. The term “normally” means for the majority of the time. Therefore an “operating centre” is the area defined on the plan submitted to a Traffic Commissioner where vehicles will be parked up, for the majority of the time, when not in use.
I am extremely limited in what I can take into account, and therefore what I have power to determine. I am only concerned with the actual operating centre itself and where any egress/exit to or from the operating centre first joins a public road. Once a vehicle is on a public road (a road that is maintained at public expense) it falls outside of my jurisdiction and into the jurisdiction of the local authority responsible for maintaining that road.
I can only take into account the vehicles that are authorised under the operator’s own operator’s licence for the North West Traffic Area. That means I have no jurisdiction over third party vehicles or vehicles specified on an operator’s licence held by this operator in a different traffic area were such a licence to be granted in the future. In this application I only have jurisdiction over heavy goods vehicles (“HGVs”). A HGV is defined in UK law as being a vehicle with a gross vehicle weight of over 3,500kgs. To assist, a standard Ford Transit van has a gross vehicle weight of 3,500kg and therefore, along with similar and smaller vans, would be outside of my consideration.
I have no jurisdiction over the suitability of the surrounding road network, that is for the local authority responsible for that road network to decide.
I have no jurisdiction over the general use of the overall site. That means activities undertaken there such as general storage or engineering works are outside of my jurisdiction; for example the use of forklift trucks to move things around the yard or to load/unload third party vehicles.
I have no jurisdiction over the lighting of the site when the purpose of that lighting is for the general use of the site itself as opposed to the specific use of the operating centre.
I have no jurisdiction over issues that relate to planning permission save when the land in question has never been used as an operating centre before.
I do have jurisdiction in relation to the operation of vehicles that are normally kept at the operating centre for activities within, or directly linked to, the operating centre which includes loading, unloading, maintenance, washing, lighting, noise generation, dust produced, fumes generated and vibration caused by the operation of those vehicles.
Representors, being the local residents, are restricted to making representations against the operating centre on the basis that environmental concerns will prejudicially affect the use or enjoyment of their land. This is best interpreted as the being whether the grant of this operating centre would affect what they see, what they smell, what they feel and what they hear.
Objectors – in this case the council – may also make objections on the basis of environmental concerns, but the legislation does also allow objections for failure to comply with mandatory statutory requirements to obtain a licence – such as good repute, financial standing, and professional competence. In this case today, the sole statutory objector has limited their objections to environmental and road safety concerns.
ASSESSMENT OF EVIDENCE
The evidence provided is a matter of public record and I do not aim to repeat that here. The following is intended to provide a summary and reminder of the key points relevant to my decision.
I give regard to the papers provided by Mr. Owens. These include the Noise Impact Report, the Risk Assessment and the Swept Analysis. As stated to Mr. Owens at the inquiry the amount of weight I apply to these documents is reduced because I was unable to have the information presented in terms the room could be capable of fully understanding, and I was unable to cross examine the papers or those that produced them (as they were not in attendance). I also consider that the papers had regard to the proposed operating centre as it was currently being used. The noise impact report provided some reference to vehicles, but the purpose of the report was recorded as being in relation to an application “for the site to be used as builders storage yard” and not for its use as an operating centre. The report also referred to previous reports but these were not included. Other elements referred to items which were outside of my jurisdiction whilst also failing to refer to the type of vehicle which might be specified (a 7,500kg HGV for example).
Similar issues existed with the Risk Assessment, and the swept analysis was prepared by Mr. Owens himself.
I acknowledge the documents and do not apply “no weight” to them, but weight is limited. They do however, particularly the Noise Impact Report, go towards my final considerations.
The evidence by the Traffic Examiners was not challenged by the applicant but was subject of disagreement from the residents who were concerned, by way of an example, about the time of day the site was visited remarking that alternative times, when the road would naturally be busy would have been more suitable. I reject that assertion as the assessment of the surrounding network, including the road that passes along the proposed site, is not for the consideration of the DVSA on this occasion.
Of interest was that the DVSA Examiners noted considerable changes to the operating centre since their first report was produced. The second visit, dated 05 March 2025, resulted in concern that the site may no longer be suitable. Photographs produced for the inquiry by the applicant showed further changes still. Mr. Owens stated that this was all due to improvement works within the site, but it did raise concerns as to the current suitability of the site.
Liverpool Council restated their objections being that the residential environment and tree lined road was unsuitable for HGVs, the noise coming from the operating centre was such that it would be prejudicial to the enjoyment of residents of their own properties and that the regular use of the area by HGVs could create road safety concerns.
The council provided a range of photographs as evidence. Mr. Mollon explained to me that he was Director of Highways, with strategic leadership responsibility of the Highways Management Team and Network Management Team. He referred to mirrors erected by the applicant at the entrance/exit of the site and advised that (i) the installation of these would evidence that there is an identified road safety risk accepted by the applicant and (ii) that these would not be considered acceptable for use on the public highway as they easily get damaged, get dirty, and, in winter/dark evenings, are unreliable.
The Council set out a range of proposed undertakings should the operating centre application be granted. This included the requirement to park within the site, restrictions of movements between stated hours, vehicles to turn left into, and on exiting the site, the use of a banksman, and noise suppression.
As stated before, each representor in attendance was allowed an opportunity to address me on their concerns. I am grateful that they largely restricted their evidence to points relevant to those set out in legislation. Overall, these included the sound from the site, vibrations from HGVs rolling over speed bumps along the road, dust being kicked up from the yard, and the sight of vehicles and portacabins in the yard. The majority of representors also raised concerns about road safety with a focus on the vehicles entering and exiting the yard. I was presented with evidence the representors felt illustrated this issue, with vehicles parked outside the centre, parked on pavements, blocking the road, and reversing – without a banksman – into the site.
I have also had regard to the written representations of those residents that took time to write to this office but were unable to attend this inquiry.
The suitability of the nominated operating centre had been a changing picture. Mr. Owens had been initially advised that the site was suitable, but then made aware that, on account of the changes he had introduced by 05 March 2025, that this position had changed. Although photographs were provided at the inquiry it was difficult to establish a clear picture. I agreed to reserve any finding on this pending a further report from the DVSA. A date was agreed at the hearing for a further DVSA visit and report to be provided.
On 10 June 2025 I received a copy of the completed DVSA site report along with a pack of 18 photographs taken. Those photographs include images from within the site, the area immediately outside at the entrance and exits, and some photographs of trailer plates. The report, signed by TE Poole, concluded “Whilst there have been improvements to the site with the addition of concrete slabs, in the opinion of both myself and Examiner Rourke the site in its current state is not fit to be an operating centre. There are too many obstructions within the site for the vehicles to move through safely in forward gear”.
It further stated “It is also important to note that whilst we were stood outside the site with Mr. Owens and 5 of the neighbours a van visiting the site proceeded to reverse into the gate to the left of the site. Furthermore, there was no banksman in sight.”
FINDINGS
On consideration of the evidence, I make the following findings
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The concerns that the approval of this operating centre will create noise that will prejudicially affect the use or enjoyment of any of the representors land are not made out. It is clear that the use of the site as a builder’s yard has created a level of sound which residents consider to be unacceptable. I do not disagree that the sound of bricks being crushed, and forklifts reversing may prejudicially affect the use or enjoyment of their land, but that is not within my gift to consider. I must consider the impact of allowing a vehicle, and its trailers, to be parked, emptied and loaded on site. I am not satisfied that the addition of such vehicles will have an adverse impact – particularly considering this application is limited to one 7,500kg vehicle and two trailers with proposed restrictions on the time of service.
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The concerns that the approval of this operating centre will create vibrations that will prejudicially affect the use or enjoyment of any of the representor’s land are not made out. The evidence I heard referred to the vibrations on the road, particularly when larger vehicles drive over speed bumps, or due to the remedial works within the site. These are not within my jurisdiction to consider. Noting again that this is an application which would restrict the specified vehicle to 7,500kg I am not satisfied that the concern is made out.
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The concerns that the approval of this operating centre will create pollution that will prejudicially affect the use or enjoyment of any of the representors land are not made out. I accept the argument that any vehicle will create and increase pollutants, but I must balance this against the applicant’s rights. Further, vehicles are required to comply with European emission’s standards for efficiency and pollutions. As before, I must have regard to the fact that this application is for a single specified vehicle limited to 7,500kg. I also heard about dust being generated by a brick crusher and other works. These matters are, however, not within the scope of my jurisdiction.
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The concerns that the approval of this operating centre will create a visual intrusion that will prejudicially affect the use or enjoyment of any of the representors land are not made out. Some of the representors are clearly within sight of the proposed operating centre. I was advised in evidence that the site is filled with building products, and portacabins. I heard also about the changes to the visuals from a wooded copse to a building site, with the removal of trees and vegetation. This is not a matter for my consideration. Noting the location of the existing portacabins and the height of the fence and gate, I cannot conclude that the parking of a single 7,500kg vehicle and its trailers will have any adverse impact which is capable of prejudicially affecting the use or enjoyment of the representor’s land.
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The concerns with suitability of the site, as regards road safety, are made out. I am satisfied by the case made by the council that the installation of the mirrors by the applicant is an acceptance of an inherent road safety risk, and whilst I commend the applicant for taking some action to mitigate that risk, I have further regard to the Council’s evidence that the mirrors installed would not be suitable. I have regard to the sheer height of the fence/gates, and the challenge of any driver observing other road users, including vulnerable road users, when exiting. I have little confidence that the proposed use of banksmen would be acceptable. Mr. Owens told me in evidence that he already uses banksmen, but this had been challenged by the photographic evidence and further disproven by the DVSA report.
The operating centre has now been visited three times by DVSA Traffic Examiners. On only the first occasion, before the site was developed, was it considered to be suitable. Since then, both assessments conclude that it is not. I give greatest weight to the most recent assessment, dated 10 June 2025, which was conducted after the public inquiry, and for which Mr. Owens had sufficient time to prepare for the visit. I therefore consider that the proposed operating centre is not suitable, as required by section13C(5) of the Act because it was more likely than not that what was found by the Traffic Examiner would apply to this applicant, were the application granted, on the best of days.
Additionally, I am further content that the City Council has satisfied to the civil standard that the proposed site creates a road safety risk for the reasons set out. This is not contradicted by the DVSA report. For the avoidance of any doubt, in relation to where my jurisdiction ends and the jurisdiction of the Highways Authority starts; my jurisdiction includes the locus of where the entrance/exit from any proposed operating centre first joins a public road. My jurisdiction therefore covers all of the areas of concern raised by both the Traffic Examiners and the Council. I am therefore satisfied that the proposed operating centre is, again and separately, not suitable as required by section 13C(5) of the Act.
I have not been satisfied that the proposed conditions/undertakings, or any other conditions/undertakings available to me, including the use of banksman, would provide necessary confidence of effective mitigation so as to allow the nominated site to be granted.
## DECISION
Having found that the proposed operating centre is unsuitable under section 13C(5) and having further found there are not suitable conditions/undertakings that I could attach to the granting of the operator’s licence to sufficiently mitigate the reasons for my findings under section 13C(7), this application for a restricted goods vehicle operator’s licence is refused under section 13(5) of the Act.
Section 13(5) of the Act makes it a mandatory requirement that I must refuse this application.
David Mullan
Traffic Commissioner for the North West of England
24 June 2025