Appeal No.  T/2015/31

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Sarah Bell, Traffic Commissioner

for West of England dated 1 May 2015

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

Michael Farmer, Member of the Upper Tribunal

 

 

Appellants:

 

 

RBS Groundworks Limited

Rodney Brice-Smith

Kim Brice-Smith

 

 

 

Attendances:

For the Appellants: Mr Over, solicitor of OTB Eveling LLP.

 

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing: 13 October 2015

Date of decision:   9 November 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that:

(i)     the appeal against revocation of the licence be DISMISSED with effect from 23.59 on 1 December 2015;

(ii)  the appeal against disqualification of all three Appellants be ALLOWED to the limited extent that the period of disqualification is reduced from 12 months to 4 months.  The order will commence at 23.59 on 1 December 2015.

 

SUBJECT MATTER:-  Restricted licence; multiple and persistent use of unauthorised operating centres; failure to comply with the rules on drivers hours and record keeping; whether revocation proportionate; whether disqualification proportionate.

 

 

 

CASES REFERRED TO:-  Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695; Priority Freight 2009/225; Bryan Haulage (No.2) 2002/217; Red Sky Wholesalers Limited 2013/07; Arnold Transport & Sons Limited NT/2013/82.

 

 

REASONS FOR DECISION

 

 

1.            This is an appeal from the decision of the Traffic Commissioner for the West of England (“TC”) made on 1 May 2015 when she revoked the restricted operator’s licence held by RBS Groundworks Limited (“the company”) with effect from 23.59 on 9 July 2015 and disqualified the company and its two directors, Rodney John Brice-Smith (“Mr Brice-Smith”) and Kim Brice-Smith (“Mrs Brice-Smith”) from holding or applying for an operator’s licence for a period of twelve months.  The orders were made as a result of adverse findings made under s.26 of the Goods Vehicle (Licensing of Operators) Act 1995 (“the Act”). 

 

Background

 

2.            The factual background to the appeal appears from the documents, the transcript and the TC’s written decision.  The company, which undertakes ground works on highways and development sites throughout Cornwall, was granted a restricted operator’s licence in 2002.  It currently authorises 15 vehicles with 15 vehicles in possession.  Mr Brice-Smith is the main director of the company and is its controlling mind; Mrs Brice-Smith has no role in the company save for being named as a director. 

 

3.            On 4 November 2010, a driver of the company was prosecuted for driving one of the company’s vehicles otherwise than in accordance with a driving licence.  He received 3 penalty points and was conditionally discharged for 12 months.

 

4.            In November 2012, a prohibition was issued to one of the company’s drivers as a result of his failure to have with him a full set of drivers’ hours records.  The records were produced within the hour and as a result, the prohibition was removed.

 

5.            Then in February 2014, one of the company’s vehicles was stopped.  It became apparent that it was not using the specified operating centre at Killigrew Farm, Trispen, Truro.  Mr Brice-Smith was interviewed by Senior Traffic Examiner (“STE”) Ball on 31 March 2014 and he accepted that the vehicle, which was subject to a hire agreement, was not specified on the operator’s licence, which Mr Brice-Smith described as being the result of an oversight on his part and that its use meant that the company’s vehicle authorisation had been exceeded.  He accepted that he should have removed the vehicle which the hired vehicle had replaced, from the operator’s licence and that he should have managed the operator’s licence more effectively.  Mr Brice-Smith also accepted that the vehicle was not being kept at the operating centre and that his failure to apply for an additional operating centre was a “convenient oversight” on his part.  Other vehicles operated by the company were also being parked in locations other than the operating centre; he had “turned a blind eye to the practice”.  He accepted that he was going to have to rectify the position by applying for additional operating centres around the county. 

 

6.            The roadside encounter also prompted an investigation conducted by Traffic Examiner (“TE”) Rawlings.  Her operator report, which was dated 2 July 2014, was marked “unsatisfactory” for the following reasons:

 

·         Whilst drivers worked a fixed daily duty, this could be exceeded during emergency work or last minute bookings.  There was no rota system to ensure that work was distributed evenly across the work force nor a check made to ensure that a given driver had sufficient remaining hours for him to complete the work legally.  Work planning or a rota system was advised;

·         Tachographs charts and digital cards were used for all journeys.  There was no evidence to demonstrate a systemic approach to the issuing and return of tachograph charts.  Nine actions were suggested including the downloading of digital information to remedy the deficiencies;

·         The tachograph sheets and digital data were neither checked nor analysed despite the existence of an account with an external analysis firm which was not being used. Eleven actions were suggested to remedy the deficiencies;

·         Infringement reports were not being generated due to lack of analysis.  Three actions were suggested to remedy the deficiencies;

·         There were no working time directive records and a lack of awareness of the rules.  There was no system to monitor a person’s average working week over a reference period.  Four actions were suggested to remedy the deficiencies;

·         There was no systemic storage of drivers’ hours and records information.  Some tachograph charts dating back a number of years were stored on wall pegs. Three actions were suggested to remedy the deficiencies;

·         There was no system of training drivers in relation to drivers’ hours and records or health and safety.  Three actions were suggested to remedy the deficiencies;

·         Driving licences were only checked annually and copies were not always kept.  Four actions were suggested to remedy the deficiencies;

·         The forward planner was not complete for a rolling 12 month period and did not include insurance expiry dates, MOT and tax renewal dates or tachograph calibration dates and reliance was placed upon the maintenance contractor to call to book vehicles in for their PMI checks.  Five actions were suggested to remedy the deficiencies;

·         There were no regular checks of the tachograph heads to ensure that they were working correctly and the drivers were not trained to look out for problems.  Three actions were suggested to remedy the deficiencies;

·         There had been a failure to notify the Office of the Traffic Commissioner (“OTC”) of a change in maintenance provider which had taken place sometime before the investigation.  Notification and an explanation for the operator’s failure to comply with the licence declarations were to be sent to the OTC within seven days.

·         There was no daily driver defect reporting system in place.  The operator was required to implement a “nil defect” reporting system.

 

This detailed report was sent to the company along with a number of publications and Mr Brice-Smith was directed to the DVSA website for further information.  He was put on notice that the company was required to submit a written explanation for its shortcomings to the OTC along with assurances as to future compliance within fourteen days.  No report or explanations were submitted by the company.

 

7.            However, on 28 August 2014, the company did submit to the OTC, applications to specify fourteen additional operating centres on the operator’s licence.  TE Rawling’s conclusion about the company’s level of compliance was that it was disappointing that its systems were not as robust as they should have been for a long running operator even when making allowances for the absence of a Transport Manager.  Mr Brice-Smith took his business seriously but described his drivers as “groundworkers” not drivers.  HGV driving was ancillary to the nature of the company’s business and as a result, Mr Brice-Smith had not devoted sufficient time to operator licence compliance.  TE Rawlings hoped that Mr Brice-Smith had taken on board the advice that she and STE Ball had given to him and she acknowledged that he had taken steps to specify additional operating centres.  There were also some indications that the company was ensuring that all drivers completed the driver CPC training before the deadline.  TE Rawlings considered that the company was more than capable of implementing the suggested changes and Mr Brice-Smith was considering employing a full time Transport Manager. 

 

8.            The fourteen applications referred to by TE Rawlings were acknowledged by the OTC on 12 September 2014.  The letter requested further information about each application and concluded:

 

“You are reminded that in the meantime you must only use the authorised Operating Centre at Killigrew Farm, Trispen, Truro ...”

 

9.            On 20 November 2014, STE Ball encountered one of the company’s drivers (Miles Tiddy) driving a 7500kg vehicle without the appropriate driving licence.  On 11 December 2014, STE Ball interviewed Mr Brice-Smith who stated that the offence was the result of an “oversight” on his part.  An emergency had arisen when the transit van which had towed a mini-digger and trailer to a site had broken down.  It was necessary to return the mini-digger to the security of the operating centre and the fact that Mr Tiddy was not insured to drive the 7500kg vehicle (let alone licensed) “did not come into it”.  The company had since booked Tiddy onto the appropriate vocational driving course.  Mr Brice-Smith confirmed that he was aware of the requirements in relation to driving licences and he had spent money on ensuring that drivers did have the correct driving licence to drive large vehicles and trailers. 

 

10.         On 15 December 2014, Mr Brice-Smith emailed TE Rawlings to inform her that following his meeting with STE Ball, he had spoken to Tony Wood (a retired STE) and that an arrangement had been made for Mr Wood to attend the operating centre on 7 January 2015 to “help me start to get things in order – I will try to keep you updated as things happen.  Thank you for your patience”. 

 

11.         On 26 February 2015 Mr Tiddy pleaded guilty to an offence of driving otherwise than in accordance with a licence and was fined £165 and his licence was endorsed with 3 points. 

 

12.         By a letter dated 27 March 2015, the company was called to a public inquiry so that the TC could consider the applications to add additional operating centres to the licence as well as the other issues arising out of the matters set out above.  Attached to the letter was a report from STE Ball upon the suitability of the proposed additional operating centres.  He concluded that only six locations were suitable as the majority of the applications proposed that the company’s vehicles would be parked either on the driveway of dwellings in residential areas or in parking bays on residential streets which were provided to cater for the general parking needs of residents or in other areas where the general public were entitled to park.  On 20 April 2015, Mr Over (who represented the company and Mr and Mrs Brice-Smith) wrote to STE Ball informing him that seven of the applications would be withdrawn, leaving one to be determined by the TC (assuming that she agreed with STE Ball’s favourable assessments of the remaining applications).

 

13.         On 2 April 2015, Mr Wood produced a report following an audit of the company’s systems.  He highlighted precisely the same failings and inadequacies as those identified by TE Rawlings.  He was able to say that the company had signed up to OLSS and he had explained the implications of the OCRS. 

 

14.         On the morning of the public inquiry, TE Rawlings produced an addendum report.  She was disappointed to report that Mr Brice-Smith had not maintained contact with her and that the company continued to use unauthorised operating centres. 

 

 

The Public Inquiry held on 24 April 2015

 

15.         At the public inquiry, Mr Brice-Smith attended on behalf of the company and was represented by Mr Over.  Both TE Rawlings and STE Ball were in attendance.  Mr Over indicated that the evidence of both DVSA officers was agreed.  The company had not produced any drivers’ hours or working time directive records (as required by the call up letter) as when they were examined the day before the public inquiry (by a consultant, Martin Daniels), the records were found to be so “confused” that no sensible audit could be undertaken.  There was such a large number of working time directive infringements and mode switch infringements that a report could not be produced; it would have been “unmanageable”.  Mr Over accepted on behalf of the company that as at the date of the hearing, there were no drivers’ hours or working time directive systems in place.  He also advised that two of the company’s drivers had been stopped in relation to mobile phone offences but that the drivers had not been communicating with the company at the time. 

 

16.         TE Rawlings was then cross examined by Mr Over.  She had been impressed with Mr Brice-Smith’s assurances that he would correct the company’s failings and he had been enthusiastic.  Unfortunately he had not kept his word.  TE Rawlings accepted that the nature of the company’s work meant that there was unlikely to be breaches of the rules on breaks or maximum driving periods but she was concerned by other aspects of the operation.  Whilst Mr Brice-Smith had appeared to be receptive and keen to turn things around, she could not say whether he would in fact do so in the future.  He had been given advice in June 2014 but it had taken the call up letter to cause Mr Brice-Smith to take compliance seriously and instruct Mr Wood and Mr Daniels to assist him to set up the appropriate systems.  The report that Mr Wood had prepared was a repetition of her own report and all of the deficiencies remained outstanding.  TE Rawlings confirmed that there had been no concerns about maintenance.  As for the use of unauthorised operating centres, the company had continued to use the same unauthorised operating centres as before as well as parking vehicles at Saltash Services.  Four of the company’s vehicles had been seen parked at the services over the previous two months. 

 

17.         STE Ball then gave a summary of his reports concerning the company’s applications for additional operating centres and Mr Brice-Smith then gave evidence.  He relied upon a witness statement that had been signed that morning which informed the TC that the company’s fleet comprised of tipper trucks of differing weights.  The company had a turnover of £4 million and employed forty people.   The administrative staff consisted of an operations manager, an estimator and a surveyor.  There were also two employees responsible for administration and invoicing.  Fifty percent of the company’s work was with BT and the remainder was with highway authorities and developers.  Ninety percent of the work involved highways.  The company operated throughout Cornwall.  The work was scheduled one or two months in advance although the company also provided a reactive 24 hour service for emergencies.  The teams worked between the hours of 7.00 and 17.30 or 18.00 although the hours were shorter in winter.  Some drivers worked nights on work involving trunk roads.  In any event, it was rare for a driver to drive more than two or three hours a day.  All the drivers had passed their CPC’s although it was difficult to get them to use their mode switches to show rest. 

 

18.         Mr Brice-Smith had requested Mr Wood’s help on receipt of the call up letter.  He had suggested that Mr Brice-Smith attend a one day course on operator licence management and this Mr Brice-Smith had done.  He had found it “extremely useful”.  He now understood drivers’ hours and working time directive rules although it was “work in progress”.  He had spoken to all of the drivers on 13 April 2015 and directed that all drivers’ hours records were to be produced and digital downloads undertaken or wages would be withheld.  Contracts of employment were to be altered to include compliance issues.  He recognised that proper systems in relation to drivers’ hours and records were needed and he had signed up to Smart Analysis although he needed to understand how it worked.

 

19.         He had initially made an appointment to see Mr Wood in January 2015 but he was unable to attend on that date and no follow up appointment was arranged.  Mr Brice-Smith accepted that he had not reacted to TE Rawlings’ report as promptly as he should have done.  He was naturally methodical and he should have grappled with drivers’ hours and maintenance systems sooner.  He had needed the call up letter to bring it home to him. He had started to put systems in place having realised that the future was important. He had ordered a new forward planning chart and some wheel nut indicators. He needed more help in the office to implement and check systems.  He would retain the services of Mr Wood and Mr Daniels for this purpose and he would ask for quarterly audits.

 

20.         Turning to the use of unauthorised operating centres, the company’s system had been that if a team was working far away from the operating centre and the driver lived near to the work site, then they could take the vehicle home with them.  He gave an undertaking that in future, all vehicles would return to the operating centre at Killigrew Farm once a week even if they were entitled to park elsewhere. 

 

21.         In answer to questions, Mr Brice-Smith told the TC that he had signed the statement setting out the above that morning.  The use of mobile phones by drivers whilst driving was against company policy and the drivers had been spoken to.  The company would now be checking driving licences quarterly and the company would inform the TC of any convictions.  Mr Brice-Smith stated that he had been trying to do too much.  His transport knowledge was “not good” and he was hoping to employ administrative assistance from a rival company.  Mr Wood had suggested that the company undergo monthly audits for six months and Mr Daniels was to be responsible for drivers’ hours compliance.  He acknowledged that the company had a “desperate problem” with drivers’ hours and he had put the drivers through training in order to reduce infringements.  He apologised for not responding to the advice of TE Rawlings.  Mr Brice-Smith had experienced a “learning curve” since the company was established in 2002.  The call up letter had been an “incredible wake up call” and he had tried to implement as much as he could in three weeks.  The proposed new assistant in the office would act as a transport manager although they would not be qualified initially.  He had himself been working to capacity and he needed professional support.  He was aware that he had “pushed the boundaries”.  The company worked with blue chip companies and he had the ability to operate a compliant company.  He had not taken his responsibilities as seriously as he should.  He understood the gravity of the situation.

 

22.         In response to questions about operating centres, Mr Brice-Smith conceded that of the fifteen vehicles authorised on the licence, only three had been parked at the operating centre the night before the public inquiry.  The others were at “various addresses”.  One vehicle had been parking at Saltash Services for the previous six weeks “on and off”.  The TC went through the locations of the vehicles and it became apparent that the vehicles were continuing to park at the addresses and locations which were the subject of the fourteen applications including the seven that had been withdrawn.  Further, one vehicle was parking at a farm a “couple of miles” away from the operating centre for the convenience of the driver.  Mr Brice-Smith accepted that he had not instructed his drivers to return the vehicles to the operating centre and could not give an explanation as to why not. 

 

23.         As for the future, Mr Brice-Smith stated that he had no choice but to implement the required systems.  At the time when he had received TE Rawling’s advice, he had been given a “period of grace”.  He acknowledged that his competitors may think it unfair that he had not been compliant when they had been doing so although they might understand the position.  He denied that he was operating at a competitive advantage in parking at unauthorised sites thus saving time and diesel.  He accepted that he had not dealt with the “operating centre” side of the operation as at the date of the hearing.  He denied that he had been “picking and choosing” areas of compliance; he had prioritised safety related issues.

 

24.         Mr Brice-Smith was asked about the company’s maintenance provider.  He disclosed that he had been using a provider for the “best part of a  year” without notifying the OTC. His explanation was that he had only just received the maintenance agreement.  He accepted that TE Rawlings had required him to notify the OTC of his maintenance provider within 7 days of receipt of her report sent in July 2014.  He accepted that he had read that TE Rawlings’ report and had then “effectively put it on one side”. As for driver Tiddy driving a vehicle when he did not hold the appropriate entitlement, Mr Brice-Smith agreed that he did not think about Mr Tiddy’s driving entitlement on that day; he was just concerned with “getting the kit back”. 

 

25.         Mr Brice-Smith stated that if the licence was revoked, it would be impractical to sub-contract the transport side of the company’s operations and it was impractical to use smaller vehicles as the vehicles needed to tow trailers and they were in and out of the operating centre as it was.  Neither was spot hiring an option.  Revocation would have a massive impact on the company and he could not see how the company could continue to fulfil its contractual obligations.  The company had not made any contingency plans.

 

26.         In his closing submissions, Mr Over submitted that the company was not the worst that had been called to a public inquiry and that the effect of the hearing itself was sufficient to ensure that the company would be compliant in the future.  Mr Over described restricted licences as being a “problem area” as the core activity of the operator was not transport.  Mr Brice-Smith saw the company’s business as groundworks.  The company needed a CPC holder.  The TC was asked to balance Mr Brice-Smith’s failure to heed the clear warnings of TE Rawlings and the interviews with STE Ball with the fact that applications for additional operating centres were made.  Mr Over could not understand why Mr Brice-Smith had failed to follow the advice of TE Rawlings as he was a careful man who always took notes.  He should have done something and he did not.  Mr Over appreciated that it was difficult to accept Mr Brice-Smith’s assurances about the future.  He asked the TC to be lenient and to give Mr Brice-Smith a final opportunity because of the positive features of the company’s operation, for example, the good maintenance record, the absence of PG9’s or accidents.  Further, the company had not been the subject of any major enforcement in the past.  The company’s record was not bad for a restricted licence with a large fleet.  Professional assistance would be utilised and undertakings were offered with regard to regular audits: monthly for six months and quarterly for twelve months thereafter.  That would give the company an opportunity to “sort things out”.  A curtailment would be the appropriate regulatory action to take. 

 

 

The TC’s decision

 

27.         During her review of the evidence, the TC noted that Mr Wood had undertaken his audit on 2 April 2015 and Mr Daniels, the day before the hearing.  The very poor state of compliance even at the date of the hearing meant that the DVSA were even unable to determine whether the company was operating within its authorisation.  The TC noted that Mr Brice-Smith had been given cogent advice by TE Rawlings in June 2014 and that was reinforced by STE Ball in November 2014.  The TC found that there was “something very un-compelling” about allowing an operator to continue to operate who ignores the advice of a Traffic Examiner in June 2014 and the STE a few months later.  It should not take a calling-in letter for an operator who has had wholesale non-compliance pointed out to take action. There was a vast difference between an operator who took advice on board and whilst improvements had been made, there was still some non-compliance at the date of the public inquiry and an operator who chose commercial gain first and compliance second, until the threat of losing the licence became very real by receipt of a call up letter.  There was inevitably a long delay between an investigation and a public inquiry and the TC was not prepared to make a decision that condoned wilful non-compliance during that period so as to allow time to focus on commercial gain.  It was “untenable that even the night before the public inquiry there was unauthorised use of operating centres.  This is a direct threat to the integrity and effectiveness of the operator licensing regime”.  The only “positives” the TC could identify were that the call up letter did appear to be a “wake up call of sorts”; Mr Brice-Smith had spent time and money on preparing for the hearing; the company did lodge 14 applications for new operating centres but little weight could be given to them; this was the company’s first public inquiry.

 

28.         The TC determined that this was a bad case.  She reminded herself that trust between TC’s and operators and between operators was the foundation stone of operator licensing.  She noted that “promises were easily made” and that “actions spoke louder than words.  She referred to Arnold Transport & Sons Limited NT/2013/82 and Priority Freight & Paul Williams 2009/225 and having determined that the company’s failings had been “woeful” and on-going up to the date of the hearing and as the company’s compliance was “found wanting” to such an unacceptable degree, she concluded that on balance the company could not be trusted to operate compliantly in the future.  In the absence of any objective justification and excuse, there had been long term, sustained, repetitive deficiencies and in the circumstances, revocation was not disproportionate even though this was the company’s first public inquiry.  It was the TC’s role to protect the legitimate, hard-working industry to make sure that “chancers” like this operator and its director, were not allowed to continue to compete against them.

 

29.         In concluding that this was a case that justified disqualification, the TC found that this was a case of “systemic non compliance” which had been allowed to persist over time with the potential for harm by “disregard for road safety and unfair competition” that flowed over a sustained period.  It was appropriate and proportionate that the company and its directors be removed from the commercial vehicle industry for a period which sends a deterrent message to those who do not comply or who turn their heads away the obvious.  It was also important for the legitimate industry to see that firm action was taken to ensure that they and their loyal customers were not tempted to turn to such competitors. 

 

 

Upper Tribunal Appeal

 

30.         At the hearing of his appeal, Mr Over appeared for the Appellants and provided a skeleton argument for which we were grateful.  His first point was that the TC had failed to take account of or given sufficient weight to the fact that the licence was restricted without the support of a Transport Manager and that Mr Brice-Smith who had no transport experience was principally engaged in managing the groundwork business.  Mr Over referred to the Upper Tribunal decision of Red Sky Wholesalers Ltd T2013/07  and submitted that the TC should have adopted the approach taken by the Upper Tribunal in that case when it allowed an appeal and granted an application for a restricted licence to a growing business which had had its previous operator’s licence revoked nine months previously because of poor licence compliance.  The Tribunal in that case felt able to adopt this approach upon the particular facts of that case and because it imposed a condition on the licence that a Transport Manager be employed.  That was the approach that the TC should have taken with RBS Groundworks Limited as it too was a growing and successful operation and Mr Brice-Smith had already identified appropriate professional help to assist him in transforming the operation into a compliant one.  Mr Over submitted that the TC had failed to deal with or address the point that TE Rawlings had endorsed Mr Wood as an appropriate professional to help Mr Brice-Smith and that he was proposing to “buy in” assistance from a rival company who could assist with compliance. 

 

31.         Mr Over’s second point was that the TC had failed to give sufficient credit for the fact that the company did not have a regulatory history prior to June 2014.  The TC referred to this in the briefest of terms when performing the required balancing exercise when she stated: “the fact that this is the Operator’s first Public Inquiry carries very limited weight in light of the recklessness demonstrated”.  Mr Over complained that the “recklessness” referred to was not made clear and that such a finding was inappropriate.  There was nothing on the facts of the case which should have removed the credit for a lengthy period of unblemished record.

 

32.         The third point made by Mr Over was that the TC placed too much importance on the issue of commercial gain and her findings in relation to it were not objectively justifiable as she did not seek to explain the way in which any of the regulatory breaches in this case could have caused the company to make a commercial gain over competitors.  Further, the TC’s references to the “legitimate industry” must be references to the haulage industry.  However, there was nothing in the activities of the company which would be of any interest to a haulage company.  If in fact, the TC was referring to the groundwork industry, then she had misdirected herself as to her role.  The only way in which the company could have made some commercial gain was by parking vehicles in locations other than at the operating centre and the gain made by that would be very modest and have no bearing on the groundwork industry as a whole. 

 

33.         Mr Over’s next point related to the weight given by the TC to the company’s failure to have any systems in relation to drivers’ hours and working time directive requirements.  He accepted that the TC was right to consider that the unauthorised use of operating centres was a serious matter.  However, the use of words when dealing with the lack of any systems in relation to drivers’ hours, such as “wholesale”, “wilful”, “woeful”, “recklessness”, “systemic non-compliance” and “sustained and repetitive” amongst others was unjustified and an exaggeration of the position.  Whilst Mr Daniels was unable to produce any meaningful report the day before the public inquiry, TE Rawlings had agreed that it was unlikely that the nature of the company’s operations would result in break and excessive driving offences.  Mr Over submitted that had the TC undertaken a proper analysis of the drivers’ hours non-compliance, she would have concluded that it was far less serious than she had stated in her decision.

 

34.         Finally, Mr Over was critical of the TC’s balancing exercise, submitting that she should have taken account of the following: there was a proper response to the issue of unauthorised operating centres but an obvious lack of understanding as to when applications were necessary; whilst the maintenance system was “not perfect”, it did demonstrate by the lack of regulatory history that it was working reasonably well; a proper analysis of the drivers’ hours position would not have resulted in such a negative conclusion; the involvement of Mr Daniels and external analysis had been ignored; no real credit was given for the company’s achievements since receipt of the calling up letter.  Mr Brice-Smith had attended an awareness course, had instructed two experts and was prepared to recruit an additional member of staff.  All of these matters should have resulted in a finding that the company fell within the second category of operator identified in Arnold Transport (supra).  It was unclear to Mr Over why, upon the facts of this case, the TC had concluded that the company could not be trusted save for the TC’s misconceived focus on commercial gain.  The Priority Freight (supra) question should have been answered in the affirmative and the revocation of the licence was disproportionate.  As for disqualification, the TC failed to find something additional which would justify disqualification.   

 

The Tribunal’s determination

 

35.         We are satisfied that the facts of this case demonstrate that the company and Mr Brice-Smith showed a wilful and reckless disregard to operator licence compliance from at least February 2014 when it came to the attention of the DVSA that the company was using a vehicle which was not specified on its licence and which was being parked at an unauthorised operating centre.  STE Ball interviewed Mr Brice-Smith about those matters in March 2014 (prior to TE Rawlings investigation) and Mr Brice-Smith accepted that his failures had resulted from a “convenient oversight” of the licensing regime requirements and indicated that he would address the issues.  This he did not attempt to do until five months later, when the company submitted fourteen applications to add operating centres to the licence.  The photographs produced by STE Ball of the proposed operating centres made it clear that the majority of those were plainly inappropriate and unsuitable.  Mr Brice-Smith could not have taken professional advice in relation to those applications prior to submitting them.  We are satisfied that the applications were no more than a device to placate the DVSA officers and the TC without any thought about the suitability of the proposed sites.  That conduct was reckless and wilful at the very least.

 

36.         Having continued to use unauthorised operating centres up to August 2014, the company and Mr Brice-Smith then continued to park the company’s vehicles on unauthorised sites, ignoring the warning in bold type contained in the letter dated 12 September 2014 (see paragraph 8 above).  This unlawful state of affairs continued to the date of the public inquiry despite the fact that the company had withdrawn the majority of the applications.  Further, as at the date of the public inquiry, it was using additional unauthorised operating centres. The company and Mr Brice-Smith had not taken any steps whatsoever to regularise the position in relation to vehicle parking.  We are satisfied that in relation to vehicle parking alone, the company’s failings were woeful and its attitude towards licence compliance was reckless and demonstrated a wilful disregard for it.  The TC was right to use the terminology that she did.

 

37.         The same findings are appropriate in relation to the failure of the company to have any systems in relation to drivers’ hours and the working time directive requirements.  The report of TE Rawlings was an excellent and detailed analysis of the company’s failings and it gave comprehensive advice as to what was needed to remedy the wholesale failings of the company.  The Tribunal should add that whilst the company’s maintenance record was a good one, that may have been the result of luck rather than judgment bearing in mind that the company did not have a nil driver defect reporting system or any proper systems in relation to scheduling of maintenance.  The same failings identified by TE Rawlings were identified by Mr Wood on 2 April 2015 and Mr Daniels (in relation to drivers’ hours and records) on 23 April 2015.  The email sent by Mr Brice-Smith to TE Rawlings in December 2014, thanking her for her patience and indicating that Mr Wood had been instructed, was not one which could in fact be relied upon by TE Rawlings as Mr Wood did not become involved in the company until April 2015, four months later. Whilst the company, as a result of the call up letter, had taken steps in the three weeks leading up the public inquiry for example, by ordering a new forward planner and some wheel nut indicators, the attendance on a course by Mr Brice-Smith and the instruction of Mr Wood and Mr Daniels, the company’s systems remained wholly deficient. 

 

38.         It was against that general background that the TC was required to come to her findings.  It was inevitable that she would conclude that this was a bad case and that the company had in all respects shown a wilful disregard for operator licensing.  The company had been given considerable leeway by the DVSA officers because it held a restricted licence and the company’s response to that was to, in Mr Brice-Smith’s words, “push the boundaries”.  So little had been done that the TC was faced with a company giving undertakings and promises as to future conduct.  We cannot say that the TC was plainly wrong or wrong in law in concluding that she could not, as at the date of the public inquiry, accept those promises irrespective of whether a transport manager could or should have been employed and irrespective of whether a condition could have been placed on the licence in that regard.

 

39.         As for the TC’s approach in relation to commercial gain, Mr Over’s point is, with respect, misconceived.  One of the TC’s responsibilities is to ensure that there is fair competition not only between hauliers holding standard licences but also between businesses who hold restricted licences.  It cannot be fair or right for non-compliant operators to be allowed to continue to operate whilst others in the same business, in this case groundwork, are diligent in compliance.  Mr Over accepted that compliance does have some limited financial implications.  We are satisfied that the financial implications are much greater than the concession made and involves the additional costs of applying for operating centres, maintaining those centres, the costs of ensuring the vehicles go back to the operating centres and if there is only one, that can involve considerable distances and drivers’ hours which may have a knock on effect in relation to working hours and working time directive limits.  The cost of diesel and additional vehicle maintenance resulting from longer journeys both need to be taken into account.  The TC was right to have regard to commercial gain and unfair competition.  Her analysis was correct and appropriate and she was right to conclude that commercial gain was something she should have regard to in this case.

 

40.         Turning then to the TC’s balancing exercise, we do not agree with Mr Over’s analysis of the position.  It cannot be said that the fourteen applications for additional operating centres could be considered to be a “proper response” in light of the delay in making them, the obvious inappropriateness of the majority of them and when unauthorised use continued to the date of the public inquiry.  Mr Over’s point about maintenance does have some limited force because the TC did not mention the lack of any adverse history in her balancing exercise.  However, Mr Over’s point fails to take account of the fact that the company did not have any adequate systems and that it lacked a nil driver defect reporting system, something which had been highlighted by TE Rawlings in July 2014. In the circumstances, this additional positive point, could not have altered the ultimate decision.  Mr Over’s submission that the TC failed to properly analyse the drivers’ hours position and then take it into account as a positive feature is an unattractive one bearing in mind that no analysis of the drivers’ hours and working time directive requirements had been possible the day before the public inquiry.  Finally, whilst Mr Over was critical of the TC summing up the steps the company had taken since the call up letter by stating that “Mr Brice-Smith had spent time and money on preparing for the hearing”, we are satisfied that the TC was not required to repeat every step that he had taken (although there were few) bearing in mind the overwhelming negative features of this case.  In short, we are satisfied that the TC’s balancing exercise was not such that this appeal should succeed. 

 

41.         We repeat, that this was a bad case of wilful disregard of the operating licence system and of careful and reasonable advice given by DVSA officers over a period of time.  Considerable leeway was given to the company and it was abused.  We have no hesitation in concluding that the TC was right to find that revocation was proportionate and appropriate having rightly concluded that she could not, at this stage, trust the company and Mr Brice-Smith to fulfil the promises that were being made.  Revocation was the inevitable outcome of the public inquiry and we are not persuaded that either the law or the facts of this case impel us to come to a different view to that of the TC in relation to revocation as per the test in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.  We have however come to a different view in relation to disqualification.  Whilst it is plainly right that disqualification was appropriate in this case in order to remove the company from the licensing system for a period of time in order to send a message to the industry that non-compliance will be acted upon and to give Mr Brice-Smith time to reflect upon his failings on behalf of the company, we do not consider it to be proportionate to disqualify him, Mrs Brice-Smith and the company for one year.  The effect of the disqualification will be substantial on the company’s main business of groundwork and may prove to be fatal.  Even following a period of disqualification, the company must re-apply for a licence and demonstrate that it and Mr Brice-Smith can be trusted in the future.  This might include consideration of the requirement for the appointment of a professionally qualified Transport Manager. In all of the circumstances, we are satisfied that the order of disqualification should be set aside and replaced with an order of disqualification of four months for all three Appellants with effect from 23.59 on 1 December 2015.  That will provide the Appellants with sufficient time to reflect whilst sending out the appropriate message to other restricted licence holders.

 

42.      The appeal against disqualification is allowed to a limited extent.  The appeal against revocation is dismissed.

 

 

 

 

 

Her Honour Judge J Beech

9 November 2015