Impounding Decision for Vehicle Reg. No. RI5023AC
Written decision of the Deputy Traffic Commissioner in Wales with regards to the return of impounded vehicle Vehicle Reg. No. RI5023AC
IN THE WALES TRAFFIC AREA
In the matter of The Goods Vehicles (Licensing of Operators) Act 1995 and the Goods Vehicles (Enforcement Powers) Regulations 2001
Vehicle Reg. No. RI5023AC
Reference number: UOG2090601
Applicant: LEATRANS D.O.O
Respondent: Driver & Vehicle Standards Agency
Hearing at Caernarfon on 21 July 2026
Written decision of the Deputy Traffic Commissioner
DECISION
The application by Leatrans D.O.O for the return of the Volvo vehicle registration number RI5023AC is refused, the Applicant having failed to prove the ground for return of the vehicle in Regulation 4(3)(d) of the Goods Vehicles (Enforcement Powers) Regulations 2001 (as amended)
I direct that as soon as the period for appeal has expired on 20 August 2026 that the DVSA dispose of the Volvo vehicle registration number RI5023AC in accordance with the Regulations.
Introduction
This decision concerns a Volvo FH heavy goods vehicle registration number RI5023AC (“the vehicle”) that was detained by the DVSA (“the respondent”) on 1 April 2026. This was on the grounds it was being used for unauthorised purposes and not in compliance with cabotage rules.
Leatrans D.O.O (“the Applicant”), a Croatian registered company, asserted ownership of the vehicle at the time of the impounding and applied for its return. The Applicant’s director is Kenneth Leahy.
The Applicant holds a valid community licence issued in Croatia (an EU member state). The Applicant does not hold a UK operator’s licence.
The application has been considered in accordance with the provisions of the Goods Vehicles (Enforcement Powers) Regulations 2001 (“the Regulations”) and the guidance contained within the Senior Traffic Commissioner’s Statutory Document Number 7: Impounding (“SD7”).
The application was initially submitted in the name of Mr Leahy but a request to amend the Applicant’s identity to Leatrans D.O.O was granted by the traffic commissioner.
A hearing was initially listed for 21 May 2026, but an adjournment was granted at the request of the Applicant as Mr Leahy was unable to attend for medical reasons. The Senior Traffic Commissioner applied the power in Regulation 23 of the Regulations to extend the period for the hearing to be held.
The Hearing
The hearing of the application was listed at Caernarfon on Tuesday 21 July 2026.
The Applicant was represented by its operations director, John Nestor due to the continuing ill health of Mr Leahy. Traffic Manager Ger Healy also attended. The Applicant was legally represented by Mark Davies of Backhouse Jones solicitors.
The respondent was represented by Traffic Examiner (“TE”) Hayley Hemingway-Morris, the officer who impounded the vehicle, and Team Leader Stuart Clarke. The respondent was legally represented by Martin Jones of Hugh James solicitors.
The statutory background
Cabotage
The basic statutory requirements in the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) for operating a large goods vehicle are set out in the Senior Traffic Commissioner’s Statutory Document Number 0 (“SD0”) as follows:
“It is unlawful in Great Britain to use a goods vehicle on a road, for the carriage of goods, either for hire or reward or in connection with any trade or business carried out by the user, without holding an operator’s licence, unless permitted to do so by a legal exemption.”
SD0 further explains that one such exemption, allowed under Section 2(2A) of the Act, is the use of a vehicle for international carriage by a haulier established in EU Member States. The guidance in SD0 states,
“Article 8(2) of Regulation (EC) No 1072/2009 defines the extent to which non resident carriers from EU Member States are permitted to operate national road haulage services (i.e. cabotage). The provisions enable any haulier who is a holder of a UK Licence for the Community and whose driver (if he is a national of a third country) holds a driver attestation, to carry out two cabotage operations for hire or reward. Cabotage operations must be completed within the seven days following the last unloading of an incoming international journey and using the same tractor unit.”
Impounding
The Act and the Regulations make provision for vehicles operated by a person or an entity without the authority of an operator’s licence to be detained by an authorised person.
The owner of such a detained vehicle is entitled to apply to DVSA and subsequently to the Traffic Commissioner for the release and return of the vehicle.
Regulation 2 defines “owner” in this context as meaning:
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in the case of a vehicle which at the time of its detention was not hired from a vehicle-hire firm under a hiring agreement but was registered under the Vehicle Excise and Registration Act 1994, the person who can show to the satisfaction of an authorised person that he was at the time of its detention the lawful owner (whether or not he was the person in whose name it was so registered).
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in the case of a vehicle or trailer which at the time of its detention was hired from a vehicle-hire firm under a hiring agreement, the vehicle-hire firm; or
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in the case of any other vehicle or trailer, the person who can show to the satisfaction of an authorised person that he was at the time of its detention the lawful owner.
In proceedings of this type, that are adversarial in nature, it is for:
- The Applicant to prove on the balance of probabilities that it owned the detained vehicle at the material time.
- The DVSA to prove their right to detain the vehicle.
- The Applicant to prove on the balance of probabilities that one of the grounds for its return applies.
Application may be made on four grounds contained in Regulation 4(3) of the Regulations (as amended by the Goods Vehicles (Enforcement Powers) (Amendment) Regulations 2009):
- “that, at the time the vehicle was detained, the person using the vehicle held a valid licence (whether or not authorising the use of the vehicle).
- that, at the time the vehicle was detained, the vehicle was not being, and had not been, used in contravention of section 2 of the 1995 Act.
- that, although at the time the vehicle was detained it was being, or had been, used in contravention of section 2 of the 1995 Act, the owner did not know that it was being, or had been, so used.
- that, although knowing at the time the vehicle was detained that it was being, or had been, used in contravention of section 2 of the 1995 Act, the owner—
- had taken steps with a view to preventing that use; and
- has taken steps with a view to preventing any further such use.”
The Applicant sought the return of the vehicle in this case on ground d) namely that it had taken steps to prevent the unlawful use on 1 April 2026 and had also taken steps to prevent such future use.
The circumstances of the impounding
TE Hemingway-Morris confirmed the contents of her written statement to be correct.
On 1 April 2026 the vehicle was stopped and checked by the DVSA at the agency’s check site in Ewloe, Flintshire. The vehicle was a left-hand drive Volvo FH articulated tractor unit registration number RI5023AC (registered in Croatia), and it was towing a three-axle box bodied trailer. The vehicle and trailer both bore livery in the name of “Leatrans International”.
The driver told the TE that his journey that day had started in Liverpool and that he had delivered a trailer to Holyhead. He had collected a new trailer at Holyhead and was driving to Dover with the intention of leaving the UK the same day.
The driver explained that he had arrived with the vehicle in the UK on 25 March 2026. This was verified by the tachograph data from the vehicle unit. That data also showed the vehicle had remained continuously in the UK until the encounter with the DVSA, 7 days later on 1 April 2026.
The driver produced evidence of his activities with the vehicle after arrival in the UK. He had delivered the original load brought in from the EU on 26 March 2026 to an address in Bedford. He then collected a new trailer the same day and delivered that to Pembroke Dock on 28 March 2026. The driver exchanged that for another trailer which he delivered to an address in Middlesex that same day.
The driver and vehicle had therefore completed the two laden journeys of cabotage permitted by the rules by close on 28 March 2026. There was no authority for the vehicle to continue to undertake carriage of goods for hire and reward within the UK during that visit.
The evidence produced by the driver showed that that the vehicle had been used for a further three separate laden journeys between addresses in England and Wales between 30 March 2026 and 1 April 2026.
Those three most recent journeys were not exempted under the cabotage rules and therefore amounted to unauthorised use for the purposes of Section 2 of the Act (The journey from Holyhead to Dover on 1 April 2026 when the DVSA intervened, would not have been in breach of cabotage rules as the ultimate destination appears to have been in the EU.)
TE Hemingway-Morris also produced evidence that in October 2025, the Applicant had been sent a letter following a previous encounter in September 2025 when one of its vehicles was found to operating outside the cabotage rules. The letter warned that impounding could follow if there was a further such incident.
The vehicle was impounded on 1 April 2026 and remains detained by DVSA. The Applicant arranged for its trailer to be collected on 1 April 2026 by another vehicle.
The DVSA arranged for public notice of the impounding to be published in the London Gazette, on 8 April 2026 and a copy of the notice was served on the Applicant and other relevant persons as required by the Regulations.
The Applicant did not seek to allege any procedural irregularity.
The application for return of the vehicle
On 9 April 2026, the Office of the Traffic Commissioner (“OTC”) received an application for the return of the vehicle (dated 9 April 2026). The application was submitted in his own name by Mr Leahy (but giving the address as that of the Applicant company) and initially identified the grounds to be argued as ground a); existence of a valid licence (namely the Croatian licence), and ground c); that the owner did not know of any unauthorised use.
The application gave further details in that it was said the additional movements in the UK were the result of an error by the transport planner and that any breach was unintentional. Mr Leahy said he was unaware of the previous warning letter and was not aware that the applicant’s interpretation of cabotage rules “required correction”. Evidence was provided of a training document on cabotage requirements that was delivered to staff on 2 April 2026, the day after the impounding.
On 6 May 2026, the Applicant’s solicitors wrote to OTC seeking leave to amend the Applicant’s identity to that of Leatrans D.O.O. The solicitors also sought to amend the grounds relied upon to those under ground d); that although knowing that at the time the vehicle was detained it was being or had been used in contravention of Section 2 of the Act, the owner had i) taken steps with a view to preventing that use and ii) has taken steps with a view to preventing any further use.
The traffic commissioner allowed both amendments to be made.
The Applicant complied with the direction to provide documentary evidence of the matters to be considered.
Evidence and Findings
Ownership of the vehicle
The Applicant’s assertion of ownership was supported by a Croatian certificate of registration in the Applicant’s name, and a sales invoice dated 16 December 2025 issued to the Applicant by a company named Leahy Transport and Rental BV. I have also taken account of the livery on the vehicle, the driver’s account that he was working for the Applicant and the absence of any evidence pointing to another potential owner.
The applicant’s ownership of the vehicle was not contested by the respondent.
I have considered the guidance issued by the Senior Traffic Commissioner in SD7 and the test outlined of whether the appellant has produced sufficient evidence to satisfy the traffic commissioner upon the balance of probabilities that it is the owner.
Having regard to the collective evidence I have seen on the point, and on the balance of probabilities, I am satisfied that the applicant has established its ownership of the vehicle.
DVSA’s right to detain the vehicle.
I consider that the facts as known to TE Hemingway-Morris at the time of detention were such that it was reasonable for her to believe that the vehicle was being used for hire and reward and had been so used without any applicable exemption from the requirement to hold an operator’s licence authorising such use.
This aspect of the case was not disputed by the applicant. It was accepted that its use of the vehicle in the days leading up to the detention was without proper authorisation.
I was satisfied on the balance of probabilities that DVSA had reason to believe that the detained vehicle was being or had been used, on a road, in contravention of Section 2 of the 1995 Act.
I further find that all the procedural requirements set out in the Act and Regulations have been met including the service of relevant notices on the applicant and other relevant persons, and adherence with the specified time limits.
The ground claimed for the return of the vehicle.
Evidence
Mr Nestor gave evidence on behalf of the applicant that was generally consistent with his witness statement.
It was accepted by the applicant that the vehicle had been used for journeys outside the cabotage regulations after its arrival in the UK on 25 March 2026. The applicant sought to ascribe responsibility for that to the failure of its transport planner, Ioan Tisilita, to follow cabotage rules when allocating work to the vehicle’s driver.
The applicant was unable to provide any explanation for Mr Tisilita’s actions other than suggesting that he may have been distracted by some personal circumstances. Following the applicant’s internal investigation, Mr Tisilita was issued with a formal warning. The action taken reflected Mr Tisilita’s long service with the applicant and what was described in Mr Nestor’s statement as the absence of any previous issues (although later questioning cast doubt on that assertion).
Mr Nestor conceded that each journey undertaken by the vehicle after its arrival in the UK on 25 March 2026 would have been effectively planned on a day-by-day basis. This is significant as it means Mr Tisilita repeatedly failed to take account of the cabotage rules rather than it being a single error.
The applicant produced evidence covering a period from 2021, that Mr Tisilita (and others) had been regularly trained on its operational planning systems and this included training on cabotage rules. The operational instructions and training material clearly and accurately described the cabotage regulations. The most recent training delivered to Mr Tisilita prior to the first DVSA encounter was in August 2025, a month before that encounter on 18 September 2025.
Mr Nestor said that prior to that encounter, the applicant had not identified any previous issues with cabotage regulations in operations since 2002 and consequently it considered it had adequate systems in place to ensure it complied with those regulations.
The applicant’s position is that it never received the warning letter from the DVSA following the September 2025 incident, despite it being correctly addressed. However, Mr Nestor accepted that the applicant was aware of the encounter and cabotage offence that had been identified. The applicant claimed to have recognised the seriousness of the position and to have reviewed its systems as a result. The only consequence of the apparent non-receipt of the DVSA letter is that Mr Nestor said he had not appreciated that impounding could be one of the consequences of any future breach. This appears to be borne out by a subsequent “Quality alert” issued by the applicant to its planners which lists the other potential serious consequences of a cabotage breach but omits impounding.
Following the September 2025 encounter, the applicant delivered refresher training to its planners including Mr Tisilita. A training log was produced as evidence (page 74 of the bundle) that noted Mr Tisilita had completed the training on 30 September 2025. My attention was drawn to the fact the log recorded Mr Tisilita (and others) as only having spent a matter of seconds on the training. Mr Nestor sought to explain that some members of staff had completed the training online and others, including Mr Tisilita, had done so in a classroom environment. Staff in the latter category were required to record their attendance using the online system, but this did not accurately record the duration of the training. This does not appear to be a particularly reassuring way of recording meaningful staff training, and I am concerned about the absence of other evidence to indicate that planners were trained at length in October 2025 about the cabotage position.
Other than the training log, Mr Nestor and the applicant did not seek to produce any other evidence to support its assertion it had undertaken a thorough investigation after the September 2025 investigation. Mr Nestor said the cabotage breach on that occasion was also due to a planner’s failure to adhere to the rules.
Mr Nestor said that the planner and driver involved on that occasion were spoken to about the issue. Mr Nestor claimed to be unable to recall the identity of the planner involved with certainty, but he accepted that it was likely to have been Mr Tisilita. It was also claimed the driver would have been spoken to on that occasion, but no evidence was produced in that regard either.
Mr Nestor confirmed that the applicant took no further action to change its approach after the September 2025 encounter other than deliver the refresher training. The applicant believed that as only a single incident had occurred in several years of operation, that action was sufficient. Its quality assurance system for looking at transport planning was not changed and continued to omit compliance with cabotage rules from scrutiny.
Mr Nestor accepted, with hindsight, that the steps taken post September 2025 were not sufficient to prevent future cabotage breaches. He also conceded that the steps the operator took post the April 2026 encounter could have been considered after the first encounter in 2025.
Mr Nestor said that following the April 2026 encounter, the applicant had revised its quality control measures. Its transport manager now conducts a daily planning meeting that includes consideration of cabotage compliance. This is supported by a revised quality assurance/key performance indicator system that looks back over recent events and also considers cabotage compliance. Mr Nestor said its compliance was still dependent on the planners allocating work appropriately. He claimed that the applicant was unaware of any technical system or solution that would remove the risk of human error in planning cabotage compliant work.
Mr Nestor said that the applicant’s drivers had also been trained on cabotage compliance and that they were instructed to report any concerns with the journeys allocated to them with their managers. He said the investigation post April 2026 had identified that the driver should have known the work he was undertaking was in breach of cabotage and ought to have raised it with his managers. The driver was given a warning as a result. There was no supporting evidence produced of any of these matters relating to drivers and I therefore approach that evidence with caution.
Findings
In considering the evidence heard, I have taken account of the guidance offered by the Upper Tribunal in Van Der Gaag Transport De Lier BV v Driver and Operator Standards Agency: [2016] UKUT 345 (AAC) (“VDG”) as cited in SD7. Both advocates referred to the judgment, but Mr Davies invited me to distinguish it from the present case on the basis that context of the VDG case involved an operator with a lengthy history of alleged cabotage breaches over a number of years.
I accept that the background to this case is not as extensive and troubling as that in the VDG case, but the Upper Tribunal made it clear that it was setting out principles that could be applied in any case where ground d) is argued. At para 37 it is stated,
“Each case will turn upon its own facts but we should make it clear, that the hurdle is a high one in cases where the applicant is an owner/operator because they must demonstrate the steps they have taken to prevent themselves from committing criminal offences.”
I consider that it is appropriate for me to be guided by the principles in VDG although my assessment of the reasonableness or otherwise of the applicant’s approach must take account of the individual circumstances of this case.
The Upper Tribunal in VDG said that the steps required to be shown for the purposes of ground d) were, “all those steps that a reasonable owner would take in the circumstances they find themselves in, not only in the context of preventing past unlawful use but future unlawful use”.
VDG also contains a list of steps that an applicant could produce to support an argument under ground d). It is stressed that it is not an exhaustive list, but it includes evidence of:
- Systems for planning compliant journeys.
- Planning guidance, instructions and training to those responsible for scheduling vehicles and their journeys.
- The scheduling in the instant case which had resulted in the impounding.
- The investigations undertaken by the management as to what went wrong in the instant case and “insofar as there have been more than one warning letter sent to the owner/operator about unlawful operation in GB, the investigations following each warning letter and the additional steps taken to prevent the commission of criminal offences in GB;”
- The disciplining or retraining of staff including drivers who were responsible for non-compliant scheduling or operation.
- Instructions and procedures which were in place to ensure that the driver of a vehicle undertaking cabotage had the necessary documents with him.
Finally, I consider it pertinent to quote the guidance in VDG that oral evidence alone is unlikely to be sufficient as, “one of the tasks of the TC will be to consider the efficacy of the steps relied upon by the applicant” (per para 38).
Whilst this applicant does not have the chequered past of VDG, I consider the one past cabotage incident in September 2025 to be highly significant in determining whether the first limb of ground d) has been shown.
Prior to September 2025, the steps the applicant had taken to ensure cabotage compliance relied on its planners adhering to written operational instructions. This approach was reinforced by regular training. I accept that the instructions were accurate and would ensure compliance, but with the significant caveat that was dependent on them being followed by the individual planner.
Mr Davies argued that this system had worked well to prevent previous cabotage breaches. With respect, I consider that approach by the applicant is fallacious. As traffic commissioners, we are all too familiar with operators who complacently equate the lack of adverse incidents with the adequacy of their systems to prevent such incidents. A competent operator should have reasonable steps in place to assess and counter the risk of adverse incidents (such as cabotage breaches) notwithstanding the past absence of such incidents, which may be more attributable to good fortune than effective management.
I consider that a critical feature of this case is that prior to September 2025, the applicant had taken insufficient steps to guard against the risk of human error (or other non-adherence) in its scheduling of journeys. It relied entirely on the training delivered to its staff.
The cabotage encounter in September 2025 should have put the applicant on notice of that vulnerability in its approach.
I am concerned about the scant evidence presented in relation to the circumstances of the September 2025 breach. Whether or not the DVSA warning letter was received, the applicant accepted it was aware of that incident and its seriousness and sought to argue that it had taken immediate action in response. I also have difficulty accepting Mr Nestor’s evidence that he could not be sure of the identity of the planner involved in that incident. This was only 9 months ago, and the applicant itself says it was an unusual and serious event. I would have expected the applicant to have been able to produce far more comprehensive evidence of its investigation and findings at the time.
I consider it is more likely than not that Mr Tisilita was the planner involved in the September 2025 incident. I also consider that the applicant’s reticence about the circumstances of the September 2025 incident is more likely than not prompted by the fact that those circumstances would reveal considerable similarities to the incident in April 2026. That in turn would beg questions about why more was not done in September 2025 to prevent a recurrence a mere 8 months later.
The applicant’s only response to the September 2025 cabotage breach was to swiftly issue refresher training to all its planners. There is no evidence that targeted retraining of the individual planner involved was considered (whether or not that was Mr Tisilita). The applicant does not appear to have considered what purpose there was to the refresher training, when the previous, apparently regular, training delivered had failed to prevent the cabotage incident. Mr Tisilita and colleagues had been trained a month previous to the incident, and it is difficult to see what practical benefit the applicant believed would flow from training them again on largely the same material.
Crucially, the applicant failed to question if its reliance on individual planners to schedule compliant journeys was adequate and it also failed to identify the need for some form of quality control oversight. In my view, those are questions that a reasonable operator would have addressed. This view is bolstered by the fact that the applicant did introduce some such measures after the April 2026 encounter.
It is troubling that there is a lack of clear explanation why Mr Tisilita failed to plan compliant journeys in April 2026. The cabotage rules are not complex, especially to a planner that had supposedly received the training described in Mr Tisilita’s case. The impounding did not follow one isolated event that could be ascribed to a misinterpretation or miscommunication. Over the course of a week, Mr Tsilita repeatedly arranged for the vehicle and its driver to undertake journeys that he ought to have known were unlawful. It is difficult to accept that was due to inadvertence and raises the troubling concern that the planner acted deliberately or not caring if the journeys were compliant or not. Against that background, it is surprising that the applicant took such limited disciplinary action especially as it now appears likely that Mr Tisilita was responsible for the earlier breach in September 2025.
The applicant has failed to persuade me that prior to the encounter on 1 April 2026 it had effective systems for planning compliant journeys. This is on the basis that it unreasonably placed all its reliance on compliant journeys with the individual planners without any real measure of oversight or other “safety net”. Its response to the September 2025 incident was inadequate in terms of both the thoroughness of the investigation, the lack of steps to revise its systems and the lack of proportionate and meaningful action against those staff members who had failed to follow instructions. Presented with the circumstances of the September 2025 encounter, I consider that a reasonable operator would have taken far greater steps to understand how the breach arose and the steps it needed to take to prevent repetition.
Accordingly, I find the applicant has failed to prove the first limb of ground d) namely that it had taken steps with a view to preventing use in contravention of Section 2. As both limbs of ground d) must be satisfied, that failure means the applicant has failed to establish the grounds for return of the vehicle.
In consequence, it is not necessary for a formal finding to be made in relation to the second limb. I will however acknowledge the evidence I heard of the steps the applicant has taken since the April 2026 encounter. The daily transport planner meetings should now reduce the risk of repetition, and the quality control process should also allow the applicant to better understand the risks it faces. However, I consider that there are still potential vulnerabilities in the applicant’s approach. Its scheduling system remains reliant on the decision making of the individual planner. Although there is now oversight of that process, it appears that would only allow intervention after the event. The steps taken could be categorised as more of a cure than a preventive measure. I would strongly recommend that the operator investigates if there is a software or other solution that would prevent or reduce the risk of a planner scheduling a non-compliant journey.
Mr Davies, in his closing submissions for the applicant asked me to consider Article 1 of the European Convention on Human Rights and the question of proportionality.
This is an issue that has been much rehearsed in previous impounding appeal cases, and the position is summarised in SD7 at para 52, “there is no residual discretion for traffic commissioners to import the concept of proportionality into the tests laid out in the legislation”.
I have considered the guidance offered by several appeal cases considering the applicability of Article 1 to impounding decisions including Nolan Transport v Vehicle & Operator Services Agency & Secretary of State for Transport (2012 UKUT 221 (AAC) where it was said at para 270:
“…we are quite satisfied that, properly applied, the impounding regime strikes a fair balance between the rights of the individual vehicle owner and the interests of the State, on behalf of the public generally, in securing compliance with the system of operator’s licencing in order to promote road safety and fair competition. For these reasons we can see no need to read down the provisions of the impounding regime in order to include an element of discretion. Indeed we find it difficult to envisage any circumstances in which after the failure of a claim for the return of a vehicle it would, nevertheless, be appropriate to exercise a discretion to return the vehicle.”
This approach was also followed in Bolle Materieel BV: [2016] UKUT 398 (AAC) in which it was said (at para 39),
“The impounding regime contains many checks and balances throughout its process and we repeat, once the point has come when a decision is made not to return a vehicle to an operator, findings of fact will have been made that the operator knew that the vehicle was being operated in breach of s.2 of the 1995 Act and had failed to satisfy a TC and/or the Tribunal that it satisfied the ground contained in paragraph 10(4)(d) of the 2001 Regulations justifying the return of the vehicle”.
I find this application fails and direct that as soon as the period for lodging an appeal (1 month from today) has expired that DVSA may dispose of the vehicle in accordance with the regulations.
Gerallt Evans
Deputy Traffic Commissioner
23 July 2026