Neutral Citation Number: [2009] UKUT 220 (AAC)

Appeal No.  2009/455

IN THE UPPER TRIBUNAL            

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL FROM THE DECISION OF John BAKER

DEPUTY TRAFFIC COMMISSIONER for the

SOUTH EASTERN & METROPOLITAN TRAFFIC AREA Dated 6 July 2009

 

 

 

Before:

Judge Frances Burton

Patricia Steel

George Inch

 

 

Appellant:

MARTINI SCAFFOLDING LIMITED

 

 

 

                                  

Attendances:

For the Appellant: Paul Carless of S.P.C. Transport Consultancy

 

 

Heard at:                       Victory House

Date of hearing:           22 September 2009

Date of decision:         20 October 2009

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED and the Deputy Traffic Commissioner’s orders will come into effect at 23.59 hours on 21 November 2009.

 

 

 

 

 

 

 

REASONS FOR DECISION

 

 

1.               This was an appeal against the Decision of the Deputy Traffic Commissioner for the South Eastern & Metropolitan Traffic Area dated 6 July 2009 when he revoked the Appellant’s restricted operator’s licence and disqualified the Appellant company for 6 months from holding or obtaining an operator’s licence, the orders to take effect from 23.59 hours on 31 July 2009.

2.               The factual background appears from the documents, the transcript of the public inquiry and the written decision of the Traffic Commissioner and is as follows :

(i)              The Appellant company was granted a restricted operator’s licence on 18 June 2003 authorising 3 vehicles, with 2 in possession. The operator’s business is the transportation and erection of scaffolding in southern England. The operator at public inquiry on 14 December 2004 before the Deputy Traffic Commissioner who found that there had been convictions in the past 5 years, that undertakings recorded in the licence had not been fulfilled and that a statement of expectation had been similarly unfulfilled. At that time the licence had been suspended for 28 days, a fleet inspection had been requested within 6 months of the Decision and the Deputy Traffic Commissioner had stated that the operator had come “perilously close to revocation”. This was due to the “number of episodes of a negative nature, and the conviction, so soon after the commencement of the licence as this had left him “with grave concerns over the ability of the operator to manage the responsibilities attached to the grant of an operator’s licence”.

(ii)             There was next an unsatisfactory fleet inspection on 19 August 2005 although following a letter of explanation from the operator no further action was taken. On 22 September 2005 a vehicle owned by the operator was stopped in Sussex and found to be overweight by 77% on the second axle and 62% on the gross weight. The operator was prosecuted at Mid Sussex Magistrates and on 24 February 2006 the operator was fined £350. The operator did not notify the Traffic  Commissioner whom he thought would hear of the conviction through other channels. A formal warning letter was issued on 7 July 2006.

(iii)            On 11 November 2008 a vehicle owned by the operator was stopped on the M25 in Surrey. It was overweight on the first axle by 13.82%, by 35.4% on the second axle and by 42.06% on gross weight. A mechanical inspection revealed 5 of 6 wheel nuts loose on 1 wheel, a fractured anti roll mounting, a lower anti roll bar mounting broken, a headlamp lens broken and spray suppression equipment missing. these defects attached an immediate “S” marked prohibition and summonses were issued for hearing in South West Surrey Magistrates Court, to which the operator was pleading Not Guilty.

(iv)           VE Alan Clark made an appointment to meet the operator for a fleet inspection on 16 December 2008. The operator did not attend and claimed staff illness as the reason. Another appointment was also made and again not kept, although the operator said he had had no recollection of such an appointment.

(v)             At the public inquiry convened on 30 June 2009 evidence was given by VE Clark who gave evidence of the test history of the operator’s vehicles, which showed a failure rate of 67% between December 2004 and January 2009 (the natural average being 29%). He said that the types of defect were of a type that could have been detected at a pre test examination. TE Martin Dowling also gave evidence of visiting the operator at an address which was not the registered operating centre and which he believed was being used in place of the named operating centre as he had visited that address too and “there was nothing there, and its gates were closed although there was scaffolding and track marks at the alternative address. The Vehicle Examiner and Traffic Examiner who had been present when the vehicle was stopped on 11 November 2008 were present for cross examination and their statements had been read.

(vi)           The Deputy Traffic Commissioner had also heard from Mr Paul Phillips, Director of the operator company. Mr Phillips said that he had been the sole Director since the licence was granted in 2003 and had been in the scaffolding business since 1990. He described the improvements he had made since the public inquiry of 2004, including a driver defect reporting system, and notices placed in the cabs of a vehicle informing drivers of the weights of various combinations of scaffolding materials so as to assist drivers not to overload vehicles. He accepted the adverse points in relation to the licence in the convictions and the negative MOT history but emphasised that there had been no prohibitions between September 2008 and November 2008 and that he was content with the PMI contractor. He did, however, contest the accuracy of the weighbridge used in connection with the overloading incident. Nevertheless the Deputy Traffic Commissioner had received a report from Trading Standards Officer Andrew Danes which stated that the weighbridge was operating satisfactorily on 19 June 2008 when it had been operating within tolerances set out in the relevant Code of Practice. Mr Phillips also claimed that the loose wheel nuts must have been caused by the Vehicle Examiner hitting the wheel with a bar or torque wrench, and that the broken roll bar mountings would not affect the steering of the vehicle, since he had tested it with the mechanic who undertook the PMI work. They had agreed that it was not likely to cause any danger. He added that the headlamp damage found had occurred on the morning of the inspection, he had emailed the PMI contractor to arrange for a new headlamp to be fitted, and that a spray suppression unit was not required for the vehicle in question: VE Clark was unable to confirm this. With regard to the operating centre Mr Phillips said that he had been using the nominated operating centre until March 2009 when the lease expired, but added that it was untrue that the centre was not being used as he stored vehicles there but he used another at Keston in Kent as an office and for storage of scaffolding materials. He had tried to make an application to change operating centres, but had been sent the wrong form, delaying his application. However he accepted he had been using the unauthorised operating centre since March 2009. He hoped that he could continue to do so under an interim direction. He explained that he had never failed to respond to correspondence from VOSA but thought that if they had contacted his registered office that might not have reached him as it was the office of his accountants. He handed in copies of his driver defect rectification forms which revealed irregular completion and admitted that he did not realise that they should always be completed even if that was a “Nil Defect” report.

(vii)          The Deputy Traffic Commissioner nevertheless found against the Appellant company and made the orders as set out in paragraph 1 above.

3.           At the hearing of the appeal the Appellant was represented by Mr Paul Carless who had also represented the Appellant company at the Public Inquiry. The grounds of appeal included that the Deputy Traffic Commissioner had given insufficient weight to the improvements made in the maintenance regime; that he had not appreciated that Mr Phillips’ accountants’ address had never been given to VOSA for contact; that the Decision of another Deputy Traffic Commissioner in 2004 had been given undue weight; and that the evidence of VE Clark was tainted by his confusion as to whether a spray suppression system was required on a 7.5 tonne vehicle.

4.           Mr Carless said that he had 3 points to make as to why his client had been prejudiced by an unfair hearing.

5.           His first point was that the DTC had started from the point that the hearing of 2009 was a continuation of the public inquiry in 2004. He said this was clear from an examination of the third page of the transcript at p.114 of the bundle, from which point his client was denied an open minded hearing, and was in effect already “thirty love” down.

6.           His second point was that the use of the Appellant company’s “registered address” for correspondence was an error of VOSA’s which had led them to conclude that the company was not responding to VOSA’s correspondence. The registered address is an address required by company law (and the Appellant is a limited company requiring such an address) whereas the operator had both an operating centre address and a correspondence address on the Traffic Area Office files.

7.           His third point was that the credibility of the VOSA Vehicle Examiner (VE Clark) who thought a spray suppression system was required for a 7.5 tonne vehicle was of concern, as it called into question the reliability of the rest of the VOSA evidence. He added that every case was supposed to be heard on its merits but a fair hearing had been denied in the present instance.

8.           We pointed out to Mr Carless that the DTC could hardly be blamed for looking at past enforcement history. However Mr Carless was also concerned that mistakes had been made when Mr Phillips had attempted to apply for a new operating centre after he had been obliged to move on expiry of the lease of his nominated operating centre in March 2009. The wrong form had been sent. The operator had nevertheless attempted to regularise the position by sending in a cheque for the necessary application, and the cheque had been duly cashed. He accepted that his client had been convicted of the overloading offences and fined heavily. However he submitted that if the 2009 Public Inquiry had been conducted as a free standing event, rather than heavily influenced by the history, it would have been likely that revocation and disqualification would have been considered disproportionate.

9.           We nevertheless pointed out that even if the incorrect addressing of correspondence by VOSA was removed the remaining picture was not a good one. The Appellant company had knowingly used an unauthorised operating centre. Mr Carless countered that his client had tried to be compliant and Mr Phillips was “only a scaffolder”. He had been disappointed that Mr Phillips had represented himself at the magistrates as if he had been properly represented he might have “got off more lightly”. In summary, Mr Carless submitted, his client was not a rogue and the man who tries, even without succeeding, should not receive the severest penalties.

10.        We carefully considered all Mr Carless’ submissions but could not understand why none of VOSA’s letters had ever reached the Company’s registered address, even if VOSA was not correct to write there. A registered address for company law purposes must also be effective for other correspondence and we could not see why the Appellant company should not have received at least some of the letters sent. We concluded that this was a weak point in the Appellant company’s case.

11.        There had also been an unsatisfactory maintenance inspection and the use of an unauthorised operating centre when it was the operator’s responsibility to use the nominated centre or to change it. There was also the serious overloading, which is dangerous especially as scaffolding is a dangerous load. We did not consider that the attempt to undermine the VOSA evidence by ridiculing VE Clark for expecting a spray suppression system on a 7.5 tonne vehicle was appropriate and that the excuse that Mr Phillips was “only a scaffolder” was lame. He could always take a CPC or bring in professional advice if necessary.

12.        We have to ask ourselves if the Traffic Commissioner’s disposal was disproportionate. We do not see revocation as an unsuitable response to the sustained errors in the conduct of this licence and disqualification (and only for 6 months during which some reflection mighttake place on past mistakes) as plainly wrong.

13.        Accordingly we dismiss the appeal and the orders of the Deputy Traffic Commissioner will come into effect 4 weeks from the date of this Decision, that is to say at 23.59 hours on 21 November 2009 .

 

 

Frances Burton

20 October 2009