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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> Donnelly v Traffic Commissioner [2011] UKUT 37 (AAC) (12 January 2011) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2011/37.html Cite as: [2011] UKUT 37 (AAC) |
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TRAFFIC COMMISSIONER APPEALS
ON APPEAL from the DECISION of
Liz Perrett, Deputy TRAFFIC COMMISSIONER for the
NORTH WESTERN TRAFFIC AREA
Dated 13 August 2010
Before:
Her Honour Judge J Beech, Judge of the Upper Tribunal
David Yeomans, Member of the Upper Tribunal
Leslie Milliken, Member of the Upper Tribunal
Appellant:
Attendances:
For the Appellant: Appeared in person
Heard at: Victory House, 30-34 Kingsway, London, WC2B 6EX
Date of hearing: 13 December 2010
Date of decision: 12 January 2011
DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be DISMISSED and that the order of revocation shall take effect at 23.59 on 23 February 2011.
SUBJECT MATTER:- Breach of conditions and undertakings; good repute.
CASES REFERRED TO:- Paul Oven Transport Services Limited (2006/56); Dean Hawkins trading as Station Coaches (2005/29)
1. This was an appeal from the decision of the Deputy Traffic Commissioner for the North Western Traffic Area made on 13 August 2010 when she revoked the Appellant’s operator’s licence under s. 17 of the Public Passenger Vehicles Act 1981 and found that the Appellant was no longer of good repute under s.28 of the Transport Act 1985.
2. The factual background appears from the documents and the transcript of the public inquiry and is as follows:
(i) The Appellant’s operating history, prior to grant of his current PSV licence is as follows:
a) The Appellant has held a Certificate of Professional Competence since 1998.
b) On 22 August 2002, Wings Freight Limited surrendered its Standard National HGV licence and the company dissolved. The Appellant was a director of that company.
c) On 31 July 2002, at the conclusion of a public inquiry, the Traffic Commissioner revoked the PSV standard international operator licences of Coachmaster Limited trading as Wingate Tours and Wingtours Limited upon the ground that both lacked financial standing. Coachmaster Limited unsuccessfully appealed the revocation of its licence to this Tribunal but the appeal was dismissed and the revocation was ordered to take effect on 28 April 2003. The Appellant was a director and the Transport Manager of both companies.
d) On 1 October 2003, an application by the Appellant and Jason Deering trading as Maypole Coaches for a standard national operator’s licence was refused at a public inquiry, the Traffic Commissioner having found unauthorised operation of vehicles and not being satisfied that the conditions attached to the licence as to maintenance and drivers hours and tachographs would be complied with. The Appellant was the nominated Transport Manager.
(ii) On 18 January 2006, a public inquiry was held for the Traffic Commissioner to consider the Appellant’s application for a PSV licence in his own name. He was also the nominated Transport Manager. During the course of the public inquiry, the Appellant produced a statement in which he stated that he was now “a wiser and more responsible person willing to accept direction and instruction from the commissioner and the vehicle inspectorate”. A licence authorising four vehicles (subsequently increased to eight vehicles) was granted with two additional conditions and three undertakings attached to it:
1. The Freight Transport Association (“FTA”) will carry out annual training of all drivers including any new drivers, in drivers’ hours, tachograph use and driver defect reporting.
2. Roller brake testing will be carried out every 13 weeks.
3. There will be a “nil” written daily driver defect reporting system.
4. There will be a weekly check of wheels and tyres.
5. An FTA analysis of all tachograph charts.
(iii) On 3 November 2006, a maintenance investigation took place at the Appellant’s operating centre. The Assessment was marked as unsatisfactory as a result of: one prohibition having been issued at the road side; three prohibitions issued during the fleet inspection; a change in maintenance arrangements which had not been notified to the Traffic Commissioner. The Appellant provided a written explanation of the circumstances in which the prohibitions had been issued and asserted that he had informed the Traffic Commissioner of the change in his maintenance arrangements (from outside contractor to in-house). On 22 January 2007, the Office of the Traffic Commissioner (“OTC”) issued a warning letter to the Appellant that the findings of the Vehicle Examiner would be taken into account if further adverse reports in relation to maintenance were received by the Traffic Commissioner.
(iv) On 11 December 2008, at Holyhead Magistrates Court, the Appellant was convicted of using a vehicle without a current test certificate and was fined £175 and ordered to pay £100 costs.
(v) On the 18 and 19 August 2009, Vehicle Examiner Hilton conducted a further maintenance investigation. The outcome of the investigation was marked as unsatisfactory and a PG13F Notice was issued for the following reasons: vehicle inspection records were not available for all vehicles; inspection records were not completed on pre MOT inspections; inspection periods exceeded the stated frequency of six weeks; the forward planner did not match the actual inspection intervals; maintenance arrangements had been changed without notification of the changes to the Traffic Commissioner (the Appellant stated that notification had been given); prohibitions had been issued during the investigation, at the road side and at annual test resulting in failures. The PG13F recorded that the Appellant had been given “extensive advice” on best practice, documentation shortcomings, training issues and Transport Manager responsibilities.
(vi) In his response to the PG13F Notice dated 5 November 2009, the Appellant accepted full responsibility for the shortcomings identified on the Assessment report. He stated that he had already taken action to implement “wide ranging reforms” which would be completed by 14 November 2009. These included his assurance that he would thoroughly check each vehicle folder to ensure that all vehicle records were in a satisfactory form; a regular check by him that inspection intervals were being complied with; his son, who had previously been responsible for pre-MOT inspections, would be returned to that role; he or another member of staff would ensure that the Fleet Engineer had completed the inspection records relating to the inspections undertaken the previous day and that the forward planner matched the actual dates upon which the inspections were taking place; there was already a weekly wheel nut check system but the Appellant or a nominated member of staff would check that this was being done and the information entered into the vehicle folders; he had contacted Daniel Gaunt of the FTA training division regarding refresher courses for himself as the CPC holder and Graham Jackson, the Fleet Engineer; brake testing was taking place but by means of a Bowmonk BrakeCheck Decelerometer which he had purchased as a result of the difficulties in booking vehicles in for brake testing at the Simonswood testing centre. The Appellant described his proposals as “radical changes which would reduce the amount of mechanical maintenance work that would be needed”. In addition, he intended to reduce his fleet from sixteen vehicles to eight and surrender 25% of his vehicle discs. All of these changes he was “honestly and sincerely committed to”.
(vii) On 17 December 2009, VE Hilton submitted a public inquiry brief to the Traffic Commissioner. His findings in relation to the additional conditions and undertakings attached to the Appellant’s licence were as follows: FTA driver training had last been undertaken two to three years prior to the inspection. No certificates or other documentary evidence that training had been provided was available; whilst there was evidence that the Appellant had purchased and was using the Bowmonk machine to check brakes, this had been in operation for eighteen months without the Traffic Commissioner having been informed of the change in the arrangements; there was a nil defect reporting system in operation but there was no evidence of any ad hoc observed checks taking place; the Appellant was unaware that he had given an undertaking that wheels and tyres would be checked once a week. The only checks undertaken were by the Fleet Engineer during the PMI inspections; the last tachograph analysis undertaken by the FTA was for the period 9 April to 1 July 2007. VE Hilton was informed that a driver/office assistant, Simon Heath had total control of the tachograph charts and had received FTA training about twelve to eighteen months before (no evidence was produced). Mr Heath conducted an occasional check of the records. The Appellant only became involved with drivers hours and tachograph compliance when he was informed of issues that may result in disciplinary steps being taken. He was not however, aware of any incidents which were deemed serious enough for the issuing of documentation to the drivers. When the Appellant was asked for the current tachograph charts, he said that they had been sent away for analysis.
(viii) VE Hilton was told that the Appellant only spent two days a week at the operating centre. He had last checked the maintenance records two or three weeks before and he had identified that whilst inspections and vehicle maintenance were taking place, the records were not being written up. As for the fleet inspection, VE Hilton examined eight vehicles and issued two immediate and one delayed prohibition and three inspection notices. VE Hilton concluded that some of the items identified revealed shortcomings in the quality of the drivers defect checks although some of the defects may have occurred during the course of the previous day’s operation. The inspection frequency of six weeks was also not being adhered to, with gaps of between sixteen and thirty six weeks being present in the records, without any documentation to suggest that the gaps were caused by the vehicles concerned being off the road.
(ix) In total, eight immediate and eleven delayed prohibitions had been issued since 28 June 2006. Three further immediate prohibitions had been issued at the testing station by way of “variation and refusal” for matters including suspension and braking effort defects. VE Hilton concluded that the Appellant as operator and Transport Manager did not have complete control of the maintenance and operation of the vehicles and the shortcomings identified gave cause for concerns over the ability of the Appellant to maintain vehicles in a fit and roadworthy condition. As a consequence, it was considered that the Appellant was not complying with his statement of intent with regard to maintenance undertakings.
(x) On 2 March 2010, Traffic Examiner Henharen attended the operating centre by appointment. She was met by the Appellant who informed her that he attended the operating centre twice a week, sometimes more and was always contactable by telephone. Otherwise, he delegated his responsibilities to Mr Jackson, Fleet Engineer and his Secretary, Lesley Wilson. He informed TE Henharen that his work came mainly from schools (although not contract work) and rail replacement. He had twelve operational vehicles and six prime vehicles.
(xi) The Appellant informed TE Henharen that up until November 2009, when he retired, Simon Heath had been responsible for tachograph charts. He collected the charts, looked at them and spoke to the drivers. Mr Heath was replaced by another driver, Peter Magill but he had left in January 2010. The Appellant had been dealing with the tachographs since that time and that he checked each one that was handed in. As for FTA analysis of the charts, the Appellant stated that charts were sent off every six months but that the last person to action this was Simon Heath.
(xii) TE Henharen noted that the last period of analysis undertaken by the FTA was 2 February to 26 July 2009 when a total of 505 charts were analysed. Prior to that analysis, the last period reported upon was 8 February to 7 May 2006 and a part analysis for period 2 February 2009 and 26 July 2009. Of those tachographs that had been checked, there was no evidence that the documentation relating to infringements had been brought to the attention of the drivers. The Appellant stated that infringements were dealt with by way of group sessions, although there was no evidence of such sessions having taken place. The Appellant stated that he was planning to send charts off for analysis every three months and that a recent batch had just been sent off. TE Henharen requested all of the charts for the period 2 February to 26 July 2009 and the tachographs for March to November 2009 and tachographs for driver Graeme McVey for January and February 2010. A total of 1342 tachograph charts were produced; 1342kms were missing. When this was pointed out to the Appellant he produced a description of a route without any explanation as to what it related to apart from stating that his vehicles were used on regular contract work which did not require tachograph records. This information contradicted his earlier description of the work undertaken by his vehicles and his explanation for the missing mileage in absence of other documentation was inadequate.
(xiii) Upon analysis of the charts dated December 2009, twenty three offences were found, most of which were of a minor nature and which, if encountered on the roadside, would have resulted in a verbal warning.
(xiv) Upon analysis of the charts pre-dating December 2009, 137 offences were found, most of which were of a minor nature. There were however, some drivers’ hours offences which would have been dealt with by way of a fixed penalty notice or by court action if identified on the road side. However, they were time barred and no further action could be taken in respect of them.
(xv) TE Henharen concluded that a number of drivers were committing the same offence repeatedly over a period of months, suggesting that the offences were not being brought to their attention and that relevant training and disciplining was not taking place. This was confirmed by the lack of paperwork to that effect. TE Henharen was of the opinion that the systems were not working adequately. When the Appellant was asked to produce evidence of disciplinary action, he produced one warning letter dated 11 February 2010 to Graeme McVey concerning two missing tachographs.
(xvi) TE Henharen also noted that since the licence was granted, there had been four drivers’ hours prohibitions issued at the road side for two failures to produce records, one defective tachograph and one weekly rest offence.
(xvii) The Appellant stated that group training of drivers had been carried out on 1 June 2006 (invoice produced) but no further training had taken place apart from that of Simon Heath in September 2007. It was Mr Heath’s responsibility to “cascade” the information that he had received down to the drivers. The Appellant produced a list of drivers who had watched the VOSA walk around check DVD in January 2010. TE Henharen was also shown the driver’s notice board which contained FTA literature.
(xviii) The Appellant was not aware of the working time directive regulations. He was given advice and literature was subsequently sent to him. The Appellant later produced an invoice confirming that Mr Heath had attended a training session which included working time directive training. TE Henharen concluded that if Mr Heath was “cascading” training down as described by the Appellant, then she would have expected some working time directive monitoring and compliance procedures to be in place.
(xix) TE Henharen was able to confirm that a system of driver licence checks was in place but upon checking with the DVLA, TE Henharen found that Graeme McVey did not hold a valid PCV licence, it having been revoked as a result of him failing to return the licence for the endorsement of points.
(xx) In conclusion, TE Henharen stated that it was clear that the Appellant was not complying with his undertaking that the FTA carry out annual driver training and that in respect of those records that had been analysed by the FTA, there was little evidence that the reports were being actioned.
(xxi) By a letter dated 18 June 2010, the Appellant was called to a public inquiry to be held on 4 August 2010 for the Deputy Traffic Commissioner to consider taking regulatory action against the Appellant’s operator’s licence. Good repute (of the Appellant as a licence holder and Transport Manager), professional competence, breach of conditions and undertakings, prohibitions, the conviction, material change and financial standing were all in issue, although the latter was resolved by the provision of financial information prior to the hearing. In a further letter dated 14 July 2010, the Appellant was requested to ensure that he attended the public inquiry with maintenance records, vehicle safety inspection records and driver defect reports for the last 15 months; evidence of systems for ensuring compliance with drivers’ hours and tachograph legislation and any other relevant evidence in relation to maintenance and compliance with legislation.
(xxii) In addition to the prohibitions that had been itemised in VE Hilton’s report, between 4 December 2009 and 9 July 2010 one delayed (for three items) and one immediate prohibition were issued and two further drivers’ hours prohibitions were issued for failing to produce tachograph charts and a defective tachograph.
(xxiii) On 26 July 2010, the Appellant contacted the OTC and informed a member of staff that he would not be able to attend the public inquiry and that he would write in with an explanation. An un-dated memorandum written by a member of the OTC staff stated that on 2 August 2010, the Appellant had attended the OTC to provide documents relating to the public inquiry and to explain his current circumstances. He spoke with David Simkin, Clerk to the public inquiry and Damien Currie. The Appellant produced a letter dated 2 August 2010 stating that he could not attend the hearing because of an unspecified medical condition suffered by his wife which required his full attention but when asked for further details, he refused to provide them. He stated that if his circumstances changed, he may attend the hearing, although it was unlikely and that he did not mean any disrespect to the Deputy Traffic Commissioner. He provided the necessary financial information and stated that the reports of VE Hilton and TE Henharen were correct apart from some minor points of disagreement that were set out in a letter dated 28 July 2010. He indicated that the tachograph records of August 2009 to February 2010 had been taken by TE Henharen and that tachographs for February to August 2010 would be made available on the day of the hearing. He had not produced any maintenance records as no one had ever looked at them at the previous public inquiries that he had attended. He was advised to produce them. He produced a chart showing tachograph analysis for one vehicle including daily use and recorded mileage. He was requested to bring copies of the analysis of all his vehicles and he agreed to do so (a file was later produced). The Appellant emphasised that he did not want to request an adjournment of the hearing.
(xxiv) The Appellant handed over two letters dated 28 July 2010. One dealt with the circumstances of his conviction for using a vehicle without an MOT. The letter stated that about six months before the MOT date, a new engine that had been fitted to the vehicle which had developed serious faults and that the Appellant had ended up in a dispute with Volvo which took some time to resolve by which time, the date for the MOT had passed. As his Fleet Engineer was looking forward on the forward planner rather than backwards, he had failed to spot that the MOT on the vehicle had expired.
(xxv) The Appellant’s main letter repeated that he was unable to attend the hearing for personal reasons, which he acknowledged was “not very satisfactory”. He asked that his absence should not be construed as complacency or “trivialising the severity of this inquiry” but his personal circumstances with his family prevented his attendance. “I would very much like to attend the inquiry to explain the good points about our coach company and to acknowledge that we have made mistakes over the past 4 years”. The letter did not request an adjournment.
(xxvi) The Appellant’s letter stated that he believed that he had fully complied with the conditions attached to his licence. He had notified the Traffic Commissioner of the change in his maintenance arrangements and he attached a letter dated 3 November 2006 to that effect. In relation to analysis of tachographs by the FTA, he attached an email from James Archer of Tachofta dated 30 July 2010 which confirmed that the Appellant had had a contract with the FTA for analysis of charts which commenced in 2006 and that the FTA had analysed 2,435 charts. The dates when the charts were sent and the periods analysed were as follows:
25 May 2006, 244 charts were sent for period 6.2.06 to 7.5.06
8 November 2006, 745 charts were sent for period 15.06 to 1.10.06
10 August 2007, 400 charts were sent for period 1.1.07 to 1.4.07
1 August 2008, 467 charts were sent for period 9.4.07 to 1.7.07
20 August 2009, 597 charts were sent for period 26.1.09 to 26.7.09.
The email continued “Your contract is currently overdue for renewal but we haven’t renewed yet because we haven’t had any charts in since 2009. This would be a good time to get all that sorted”.
(xxvii) The Appellant stated in his letter that a further batch of tachographs were about to be sent to the FTA for the seven month period: August 2009 to February 2010 when TE Henharen was given them for checking. The Appellant accepted that there were periods when the tachographs were not analysed by the FTA and he therefore accepted that he had not complied with the condition on his licence. The Appellant now understood that the drivers should be notified personally of infringements and that they should sign the infringement sheets produced by the FTA and that a copy should be kept on file. However, as TE Henharen had identified offences which she stated were only minor in nature, there was no need for written warnings to be given to any of his drivers. The Appellant accepted that the same minor offences were being committed repeatedly by the same drivers but that situation was now remedied by the provision of documents to drivers highlighting infringements (no examples were provided).
(xxviii) The Appellant asserted that he had, since 2006 kept an accurate weekly record of all the charts from all the drivers. He produced examples covering a three month period for two vehicles.
(xxix) As for missing charts, the Appellant felt that there had been a misunderstanding about whether he undertook any school contract work (which would not require tachographs). He had said he did not have any such contracts but he was not asked whether he undertook any college contract work. He did have one such contract. In any event, he was satisfied that he had handed over to TE Henharen all of the tachographs, including charts covering the missing 1,342kms.
(xxx) The Appellant accepted that he had not done enough drivers’ training through the FTA but there had been one on site driver training session in 2006 and Mr Heath had been on a course and had “cascaded” the information that he had received down to the drivers during the many drivers meetings that had taken place. The last training session had been in January 2010 (no evidence was provided apart from the list of drivers who had watched the driver’s walk round DVD).
(xxxi) In relation to Graeme McVey not holding a valid PCV licence, the licence was reinstated shortly after it was drawn to the attention of Mr McVey and the Appellant that his licence had been revoked. The Appellant stated that an operator had no means of knowing that a driver’s licence had been revoked unless the driver informed them of the situation. The Appellant had at all times checked licences on a three monthly basis.
(xxxii) As for maintenance, the Appellant stated that the inspection records for one vehicle had not been produced to VE Hilton because the vehicle had been sold and the records archived. Pre-MOT inspection records were not available because the Fleet Engineer chose to treat those inspections as part of the preventative maintenance inspection programme. The stretched inspection periods of sixteen to thirty six weeks were caused by vehicles being marked “VOR” in the depot without that information being included in the vehicle records. In fact all vehicles when on the road were inspected every four weeks. The forward planner was set up and organised by the Fleet Engineer. The decelerometer equipment was being used in place of the roller brake testing every four weeks, rather than thirteen weeks as specified in the condition attached to the licence. However, the Appellant accepted that he had not notified the OTC of his failure to comply with the condition. The Appellant denied that he had told VE Hilton that he was not aware that he had given an undertaking that tyres and wheel nuts would be checked weekly. It was the Fleet Engineer who had said that he was unaware of the undertaking. There were twelve vehicles available for use and as the Appellant employed a Fleet Engineer, a fully qualified diesel fitter and two assistants, the ratio of one to three was in excess of the recommended one to eight. A nil driver defect reporting system was in use but the Appellant was grateful to VE Hilton for highlighting the areas in which it could be improved and that such improvements would “possibly result in some of the prohibition notices not being issued”. The Appellant had strengthened procedures. The Appellant accepted that the forward planner did not match the actual inspection dates.
(xxxiii) The Appellant referred to his letter of 5 November 2009 in which he stated that he would reduce the number of vehicles to be maintained from sixteen to eight and that he would surrender two discs. These steps were designed to allow the Appellant to concentrate on upgrading the maintenance of his fleet: “I feel that we have now improved our maintenance by 100%”. He felt that he had put too much trust in the Fleet Engineer and he now knew that Mr Jackson’s assertions that all was well with his work were incorrect. The Appellant denied that he had been negligent or incompetent. Neither had he done anything that would affect his good repute. Having accepted that his maintenance records “have not been that good”, he stated that if the Deputy Traffic Commissioner were minded not to revoke his licence or make findings adverse to his good repute, he felt that the improvements that had been made over the past months would continue. He would understand if she was minded to reduce the authorisation on his licence by half for two years with regular monitoring by VOSA.
(xxxiv) On the day of the public inquiry, a courier arrived with all of the vehicle files and 275 tachographs. Included in the documents was a letter from the Appellant’s secretary, Lesley Wilson which stated:
“I have been asked this morning by Mr Donnelly to get out any disciplinary letters regarding drivers’ tachographs. I arrived into the office at 09.10 this morning and the messenger had to leave at 09.30am. This did not give me sufficient time to go through all drivers records. I enclose a sample of letters I was able to retrieve. I will be able to forward you more in due course if so required”.
Attached was a letter addressed to Mr McVey dated 5 July 2010 concerning a missing tachograph chart.
(xxxv) The Appellant did not appear at the public inquiry. TE Henharen spoke to her report. In answer to questions put to her by the Deputy Traffic Commissioner she stated that the Appellant had not produced any further evidence of drivers’ training apart from the 2006 course, Mr Heath’s training in 2007and the signing out of the DVD on walk round checks by drivers in January 2010. Neither was there any further evidence of FTA analysis of tachographs. Of the missing mileage originally identified in her report, she did not consider it to be of any great concern, explanations having been given by the Appellant in relation to a large part of it, although evidence of domestic journeys remained inadequate. In relation to the tachographs that had been produced on the morning of the hearing, she was able to say that there was no missing mileage but they revealed twenty five offences: two offences of exceeding the four and a half hour driving period, seventeen centre field offences and six offences of failing to record positioning journeys. Of the centre field offences, six were on charts recorded by Mr McVey who had been committing similar offences in December 2009. She concluded that Mr McVey had not received adequate training. TE Henharen did not consider, however, that the Deputy Traffic Commissioner was dealing with over tired drivers.
(xxxvi) In her written decision dated 13 August 2010, the Deputy Traffic Commissioner summarised the background to the public inquiry and noted that the Appellant had not sought an adjournment of the hearing and that his reasons for not attending were personal. She then turned to the documents that had produced that morning from the Appellant and noted TE Henharen’s conclusion that there was no evidence to suggest that the FTA had analysed any tachographs or had provided any training. Neither was there any evidence of training having been provided by another source. In the absence of a Vehicle Examiner at the hearing, the Deputy Traffic Commissioner perused the vehicle maintenance files herself.
(xxxvii) The Deputy Traffic Commissioner noted that she had not had the benefit of hearing from the Appellant and that had he been present, she would taken him through each of the undertakings he had given and how he had intended to comply with those undertakings when he had applied for his licence in 2006 as these had reflected the assurances he had given to the Traffic Commissioner when the licence was granted. In relation to the conditions, there was no evidence that the FTA undertook annual training of the drivers apart from one course held in June 2006, evidenced by an invoice, an invoice confirming that Simon Heath had attended a drivers hours and working time directive course in September 2007 and a list of drivers who had borrowed a DVD entitled “Drivers Walk Round DVD” in January 2010. The Appellant had accepted that this condition had not been complied with and that whilst he had asserted that Mr Heath had “cascaded” the training that he had received to the other drivers, there was no evidence to confirm that. The Deputy Traffic Commissioner determined that this condition had not been complied with.
(xxxviii) In relation to the condition concerning rolling road brake testing every thirteen weeks, the Appellant had not contacted the OTC to inform her of his non-compliance with the condition and the reasons for that i.e. the difficulties with bookings and the purchase of alternative equipment. However, whilst the Deputy Traffic Commissioner concluded that this condition had been breached, print outs in vehicle files confirmed that the condition was now being complied with.
(xxxix) As for the undertaking that a nil written daily driver defect reporting system be implemented, the Deputy Traffic Commissioner was satisfied that such a system was in place but she noted that the Appellant himself accepted that the system required improvement and that such improvements would “possibly result in some of the prohibition notices not being issued”. The Deputy Traffic Commissioner noted that the driver defect sheets did not include any aide memoire to remind the driver of the items he was expected to check. In the event that a prohibition was issued, the Appellant had no way of knowing whether the driver had checked that item prior to taking over the vehicle but had not found a defect. Further there was no system of ad hoc checks evident from the files and it appeared that the PMI sheets identified a significant number of defects that a driver should have spotted during his daily walk round. If the Appellant had been present at the hearing, the Deputy Traffic Commissioner would have asked him whether he cross referenced the PMI sheets with the driver defect reports, what action he had taken to establish whether there were shortcomings in the driver defect reporting system and if so, what he had done about it. She identified a number of examples of defects highlighted on PMI sheets which a driver should have reported. The Deputy Traffic Commissioner also queried why, if the drivers had been properly trained in defect reporting, a prohibition notice had been issued on 9 July 2010 for a door being jammed, which could not be opened from the exterior of the vehicle.
(xl) The Deputy Traffic Commissioner’s determination as to the third undertaking relating to the FTA analysis of tachograph charts was that it had been complied with in 2006, but that only seven months of charts had been analysed in 2007. There then followed an eighteen month gap before a seven month period of tachographs were analysed in 2009. The Deputy Traffic Commissioner referred to the email of James Archer and the reference to the FTA contract being overdue for renewal. There had not been any analysis of charts by the FTA since July 2009. The only records available were sheets showing that missing mileage was checked “in house”. There was no evidence of any other checks being undertaken.
(xli) Turning to the general undertaking to ensure that the rules on drivers’ hours and tachographs were observed and records kept, the infringements identified by the FTA were not brought to the attention of drivers. A reputable operator and Transport Manager was expected to check tachographs, forward them for analysis at regular intervals, look at the findings of the analysis, speak to the drivers who had committed offences, re-educate them if necessary and constantly monitor the drivers. Again, whilst not making an explicit finding that this undertaking had not been complied with, the clear inference was that the Deputy Traffic Commissioner was satisfied that it had not been complied with.
(xlii) Finally, in respect of the undertaking that the Appellant keep vehicles fit and serviceable, the Deputy Traffic Commissioner relied upon the prohibition notices which had been issued for a mixture of items which drivers might have been able to spot if a competent check had been done. Those prohibitions should have caused a reputable operator and Transport Manager to raise with their in-house fitter the items identified. These prohibitions had continued to 9 July 2010. She also found that inspection frequencies had appeared to have been stretched and the statements of expectation had not been fulfilled. She did not find that the Appellant had failed to notify the OTC of a change of maintenance arrangements in 2006. Neither did she find that there had been a material change in the circumstances of the Appellant. She then went on to conclude that the Appellant could no longer satisfy the requirements of professional competence or good repute.
(xliii) The Deputy Traffic Commissioner’s balancing exercise took into account on the positive side: that some of the matters raised by VE Hilton had been addressed, namely pre-MOT inspection records were included in vehicle files; “VOR” records were kept in the vehicle files; PMI frequencies appeared to be improved since August 2009; there was a file containing weekly wheel and tyre checks and roller brake testing was taking place. The Deputy Traffic Commissioner was prepared to accept, despite absence of evidence as to the frequency of testing, that the condition in relation roller brake testing was being complied with. There was a system of checking for missing mileage on tachographs and that since August 2009, the drivers had watched the “Check it Out” DVD. On the negative side, no tachographs had been sent to the FTA for analysis since August 2009 when charts for February to July 2009 were sent. The Deputy Traffic Commissioner found the Appellant’s statement to TE Henharen in March 2010 that he was about to send another batch of tachographs off to be “strange”. The intervals for the sending of tachographs to the FTA varied. The Deputy Traffic Commissioner considered that six months was too long a period to wait between analyses. Such a system meant that an operator would have to wait seven or eight months before he was alerted to infringements committed in month one of the batch sent. In the meantime, the opportunity to take remedial actions and retrain was lost. The Deputy Traffic Commissioner did not think that it was appropriate to send tachographs off in six monthly batches and in any event, she queried why the batch for August to January had not been sent to the FTA prior to TE Henharen’s visit in March 2010. If it was the case that the Appellant, anticipating a visit, had retained the charts rather than sending them to the FTA, then a reputable operator would have undertaken a thorough analysis of the charts himself to ensure that they were in “apple pie” order, discussing their shortcomings with the drivers immediately. In the event that the Appellant had taken a conscious decision not to send charts off for analysis, then a reputable operator and Transport Manager would have written to the OTC to inform her of the position.
(xliv) The Deputy Traffic Commissioner considered the Appellant’s attitude towards infringements identified by TE Henharen when she examined the tachographs that had been provided to her and in relation to the infringements on the tachographs that were couriered to the public inquiry as being unacceptable. She was satisfied that the Appellant considered that the infringements identified were “minor” and that as a consequence the only improvement in his systems was to check for missing mileage.
(xlv) Further, she was satisfied that upon the basis of the documentary evidence produced, the standard of drivers’ nil defect reporting system was “far from satisfactory”. There was no evidence of auditing or monitoring of the drivers in undertaking the checks. Whilst the Deputy Traffic Commissioner was aware that defects such as broken seats, missing safety hammers and other damage can occur when carrying children and young people, that was all the more reason for drivers to be constantly vigilant and check their vehicles every day if not more.
(xlvi) The Deputy Traffic Commissioner determined that had the Appellant been a new operator, she would have been encouraged by the improvements instigated as a result of the maintenance and drivers’ hours investigations, although disappointed by the continued lack of attention to the tachographs. However, the Appellant had been granted his licence after a public inquiry. He had also received a warning letter in 2007 and he has been involved in a number of operations over the years and should be more than familiar with the requirements of the operating system and what is expected of a reputable operator and Transport Manager. The Deputy Traffic Commissioner was concerned by the Appellant’s attempt to blame his Fleet Engineer for the shortcomings in his maintenance systems, which caused her “serious disquiet”. It was the Appellant as operator and Transport Manager who should ensure that the Fleet Engineer had his paper work up to date and that the PMI’s were undertaken in accordance with the forward planner, that drivers were undertaking their daily walk round checks correctly, that wheel nuts and tyres were being checked, that drivers were completing the centre fields of the tachographs properly “etc etc”. If the Fleet Engineer had let the Appellant down, then the Appellant should have identified this within a month or so of the decline in the systems. On the evidence before the Deputy Traffic Commissioner, whilst the maintenance systems were in place, they were not supervised effectively. Had they been, the shortcomings found by VE Hilton in 2009 would not have occurred and whilst the maintenance paperwork appeared to be “back on track”, the Deputy Traffic Commissioner asked herself: “for how long?”. In respect of the tachograph systems, they were not “back on track” and in his letter of 28 July 2010, the Appellant appeared to be “making light” of the findings of TE Henharen. The Deputy Traffic Commissioner considered that the Appellant had been less than forthcoming with TE Henharen when she asked him whether he undertook any school contract work. A reputable operator/Transport Manager would have replied “no, but I do have college contracts”. The Deputy Traffic Commissioner referred to a previous finding of Traffic Commissioner Beverly Bell when she described the difficulties of obtaining information from the Appellant as akin to “pulling teeth”. The Deputy Traffic Commissioner determined that it was incumbent upon all operators to be open with VOSA and assist them as far as possible with their duties. She reminded herself of the Transport Tribunal decision of Paul Oven Transport Services Limited (2006/56) and the observations of the Tribunal that when a call up letter was issued with allegations which were well supported by the evidence, then the evidential burden shifted to the operator to satisfy the Traffic Commissioner that the deficiencies in their systems had been made good and that they were fully compliant and/or of good repute as at the date of the public inquiry. The Deputy Traffic Commissioner referred to the Appellant’s failure to attend the public inquiry as a result of personal circumstances ; she had to be satisfied that those same personal circumstances did not prevent him running a safe and effective operation as there were clearly shortcomings that had to be addressed.
(xlvii) The Deputy Traffic Commissioner referred to the decision of Traffic Commissioner Beverley Bell refusing the licence application of the Appellant and Jason Deering in December 2003 in which the Traffic Commissioner determined that the Appellant did not display the necessary understanding of the drivers hours and tachograph rules nor had he sufficient information with regard to the systems which he said he had in place, his answers being unsuitably vague bearing in mind the previous history. The Deputy Traffic Commissioner found that assurances made by the Appellant in his letter of 28 July 2010 were also vague.
(xlviii) Having considered the cases of Bryan Haulage (No.2) (2002/217) and Priority Freight Ltd & Paul Williams (2009/225) the Deputy Traffic Commissioner concluded that against the background of the Appellant’s experience of the regulatory regime, he could not be trusted to run an operation properly in the future:
“I do not know why he appears not to be able to do so; it may be his personal circumstances; it may be his other business interests which I have noted from his own letter and the company searches on my brief; it may be that he does not understand what is required of him; it may be that he is unwilling to commit the necessary time and constant attention to detail which required of a reputable Operator and Transport Manager. He has broken his promises made to Mr. Macartney who gave him a chance to wipe the slate clean. .. I am mindful of the Transport Tribunal case of Dean Hawkins trading as Station Coaches 2005/29 in which an operator made a conscious decision to breach undertakings. At paragraph 9, it is said, “If an operator gives undertakings .. which the Appellant then chooses to disregard without informing the Traffic Area of his reasons, it is difficult to see how that Operator can be trusted ..” I accept the circumstances of that case were different from the facts in this case, but the observations are still pertinent”. .. The bottom line is that I cannot trust him. It may be that for a while some “things” may be “alright” as at the date of the Public Inquiry, I am equally sure on the balance of probabilities that “things” will then slide. Taking all the above matters into account I have concluded Mr Donnelly has no place in the industry, he has lost his repute and his licence should be revoked ..”
The Deputy Traffic Commissioner concluded that as Transport Manager, the Appellant had not met his undertakings and he had lost his good repute as Transport Manager as well.
3. At the hearing of this appeal, the Appellant appeared in person and submitted detailed written submissions with accompanying extracts from the appeal bundle for which we were grateful. The Appellant’s first point was that the Deputy Traffic Commissioner should have adjourned the date of the public inquiry until such time as the Appellant was available to give evidence. He had made it clear in his letter of 28 July 2010 that whilst he would have “very much liked” to attend the hearing of 4 August 2010, he was unable to do so for personal reasons. The Deputy Traffic Commissioner was therefore “very much aware” that the Appellant wished to attend the public inquiry. Further, during his meeting with Mr Simkin on 2 August 2010 he had explained that he could not predict when his wife would be admitted to hospital for treatment or for how long she would require after care from himself. He had said to Mr Simkin that he felt that the hearing should go ahead but with a proviso that his evidence should be accepted as honest and truthful and that the Deputy Traffic Commissioner would review the evidence prior to the hearing and determine whether she felt that the hearing could go ahead without the Appellant attending. This commitment made by Mr Simkin was not complied with and despite the Deputy Traffic Commissioner having many questions that she would have liked to have asked the Appellant and that she clearly felt uncomfortable about continuing with the hearing in the Appellant’s absence, she nevertheless decided “in her own wisdom” to continue, rather than adjourn. The Appellant stated that a level playing field and justice demanded that the Deputy Traffic Commissioner should have adjourned the public inquiry. Further, this was clearly a case where it was for the Appellant to satisfy the Deputy Traffic Commissioner about the issue of good repute as at the date of the hearing in accordance with the principles set out in case of Paul Oven Transport Services (supra) but by reason of the Deputy Traffic Commissioner failing to adjourn the public inquiry, the Appellant had been denied the right to be heard. Finally, he had been denied an opportunity of explaining the prohibitions that had been issued subsequent to the date of the call up letter and the Deputy Traffic Commissioner had denied herself an opportunity of assessing him as an operator and without such an assessment, any comparison with the case of Dean Dawkins trading as Station Coaches (supra) was wrong.
4. The letter calling the Appellant to the public inquiry made it clear that the Deputy Traffic Commissioner was not prepared to adjourn public inquiries unless that were “exceptional circumstances” for doing so and that any request for an adjournment must be in writing, submitted to the OTC, marked for the attention of Mr Simkin, giving full reasons why the Appellant felt that an adjournment should be considered. In his written documentation handed to Mr Simkin on 2 August 2010, the Appellant accepted that “it was not very satisfactory” that he was unable to attend the hearing, that his absence must not be construed as complacency or as trivialising the severity of the inquiry, but his personal circumstances prevented him from attending, although he would very much like to attend in order to explain the good points of his operation. At no stage did he seek an adjournment or indeed lay the ground for such an application. In failing to provide anything other than the barest of explanations as to his non-attendance (which was wholly unsatisfactory), the Deputy Traffic Commissioner could not begin to determine whether the reasons for the Appellant’s non-attendance amounted to “exceptional circumstances” or even a good reason which, in the absence of an application for an adjournment should have caused her to determine that an adjournment was justified in any event. Further, she had before her the memorandum of the Appellant’s conversation with Mr Simkin, the Clerk to the public inquiry in which it stated “Mr Donnelly emphasised that he did not want to request an adjournment of the inquiry”. There was nothing in that memorandum to suggest that the Appellant’s acquiescence to the hearing continuing when his wife’s unspecified “medical condition” prevented him from attending was conditional upon the Deputy Traffic Commissioner accepting his detailed written submissions as being honest and truthful or that it had been agreed that the Deputy Traffic Commissioner would consider the evidence prior to the hearing to determine whether it could proceed in his absence. If the Appellant had wished to stipulate to the Deputy Traffic Commissioner conditions precedent for the hearing to take place in his absence, he should have clearly stated those conditions in writing.
5. The Appellant was well aware that it was incumbent upon him to attend the public inquiry and to explain the findings of VE Hilton and TE Henharen and to satisfy the Deputy Traffic Commissioner that his systems had improved, that he remained of good repute and that he could be trusted in the future. He chose to do this by submitting written submissions rather than attending the public inquiry. It was the Appellant who denied the Deputy Traffic Commissioner an opportunity of asking pertinent and searching questions about his vehicle operation and of making an assessment of him as a person and operator during the course of a hearing. Further, the call up letter made it clear that any prohibitions issued after the date of the letter would be taken into account by the Deputy Traffic Commissioner and it was therefore incumbent upon the Appellant to give any explanations that he wished to give in his written submissions about the prohibitions that had been issued after June 2010. He did not do so and this ground of appeal is dismissed.
6. The second ground of appeal related to the Deputy Traffic Commissioner’s findings in relation to the breach of the undertaking to submit all vehicles to roller brake testing every thirteen weeks. The Appellant submitted that he had changed the manner in which the brakes on his vehicles were tested but the quality of brake testing had not diminished. The Tribunal advised the Appellant that the Deputy Traffic Commissioner had not made any adverse finding to the effect that brake testing was not taking place, the issue was that for some eighteen months, roller brake testing was not taking place and the Traffic Commissioner had not been informed of that change. In that regard, the Appellant had accepted that he had not informed the Traffic Commissioner but stated that he honestly believed that by using the Bowmonker equipment he was complying with the undertaking.
7. The Appellant then turned to the undertaking to operate a nil written daily drivers’ defect reporting system. He submitted that he did have such a system in place and the Deputy Traffic Commissioner was satisfied that that was the case. He submitted that in the circumstances, the undertaking had been fulfilled. He was a conscientious operator who was “petrified” of the consequences of operating unroadworthy vehicles when carrying children. He did however accept that the prohibition issued in July 2010 for a jammed exterior door was something that the driver should have checked. However, all the work that needed to be done on his vehicles was done and he was devastated when a prohibition was issued. He disputed that the defects recorded on the prohibitions were items that drivers would identify on their drivers’ daily walk round check.
8. We are satisfied that there is nothing in this point. The issue in relation to the drivers’ defect reporting system was not whether there was one in place, but rather, whether it was adequate and sufficient. The conclusion of VE Hilton was that the nature of the prohibitions issued revealed shortcomings in the driver defect reporting system, although he accepted that some of the defects recorded on the prohibitions he had issued, may have developed during the previous day’s operation. He was of the opinion that the prohibitions brought into question the quality of the first use inspections. Further, there was no evidence of ad hoc observed checks taking place. The Appellant accepted in his submissions of 28 July 2010 that the system could be improved “which would possibly result in some of the prohibition notices not being issued”. The Appellant therefore had accepted that the system was not being operated to the standard expected of a compliant operator. The findings of the Deputy Traffic Commissioner are set out in paragraphs (xxxix and xlv) above and do not require repetition. We are satisfied that the Deputy Traffic Commissioner’s assessment of the daily drivers defect reporting system is not in error or plainly wrong and that the Appellant had failed to comply with the undertaking. In the circumstances, this ground of appeal is dismissed.
9. The Appellant’s next point was that the Deputy Traffic Commissioner was wrong to find that the undertaking that the FTA would provide annual training to all drivers upon drivers’ hours and tachographs and driver defect reporting had not been complied with. The Deputy Traffic Commissioner had accepted that driver training had taken place in 2006, 2007 and 2010 but she was unwilling to accept that driver training had taken place in 2008 and 2009 by the provision of FTA literature to the Appellant who then passed it on to Simon Heath who had attended “a number of courses”. All the training information was then posted on the drivers’ notice board. Simon Heath also provided on-site training in group sessions and one to one meetings with the drivers. That evidence was sufficient to satisfy any reasonable person that driver training was taking place. The Appellant did however accept that the training of his drivers had “fallen short” and that he should have notified the Traffic Commissioner that the training of the drivers was being provided by Simon Heath and not by the FTA. He submitted that insufficient weight was placed on the display of literature on the drivers’ notice board which TE Henharen had seen.
10. We are satisfied that there is nothing in this point. There was no evidence before the Deputy Traffic Commissioner that annual training was taking place whether such provision was by the FTA or otherwise. There was no evidence that following his course in 2007, Simon Heath “cascaded” the information he had received on that course down to the other drivers or indeed that he had used the information to ensure that monitoring took place to ensure compliance with the working time directive, a subject which was covered on the course. There was no evidence that in his role as “trainer”, Simon Heath received appropriate annual training which he could then pass on or indeed that he was passing on information sent by the FTA on an annual basis. We are not satisfied that the display of FTA literature on a notice board amounts to compliance with the undertaking. Further, the Appellant accepted that no training had taken place since Simon Heath had retired in November 2009 apart from the drivers being given access to the”Check it Out” DVD and the notice board. We are satisfied that the Deputy Traffic Commissioner’s findings in relation to the Appellant’s failure to comply with this undertaking is beyond criticism. There is no evidence of driver training apart from the 2006 course and the 2010 DVD being made available.
11. The Appellant’s next ground of appeal related to the undertaking that the FTA would analyse all tachograph charts. The Appellant stated that the undertaking did not specify a time period within which charts should be sent off for analysis. He had a blemish free history as an operator of twelve years standing in respect of tachographs in that neither he nor any of his employees had ever been prosecuted for tachograph offences. He referred to a passage in the decision of Traffic Commissioner Beverly Bell in respect of Coachmasters Limited trading as Wingate Tours dated 18 August 2002, in which she stated that the Appellant appeared to have responded well to the Vehicle Inspectorate’s concerns regarding compliance with the drivers’ hours’ rules and tachograph regulations.
12. The Appellant produced a chart which he submitted demonstrated that the vast majority of the charts since February 2006 had in fact been analysed. He contended that TE Henharen, in the exercise of her duty, had in fact analysed some eighteen months of the Appellant’s charts between July 2007 and June 2010 and that in those circumstances, the Appellant did not need to send those charts off to the FTA as TE Henharen was the “supreme authority” on tachographs. There was in fact, only one period of eight months when the charts had inadvertently not been sent to the FTA. He took us to the two example schedules of tachographs he had produced for two vehicles which identified the mileage driven on each day and the relevant drivers for each vehicle. These covered a three month period . He submitted that no other operator prepared such schedules. The tachographs were also checked in house by either Simon Heath (before he retired) or the Appellant or another person. He disputed that he should have a contract with the FTA for tachograph analysis as was suggested in the email that he had produced from James Archer. The Appellant submitted that this was not a situation where the tachographs were not being analysed at all, they were, but they were being analysed in a different manner to that stipulated in the undertaking. He submitted that the Deputy Traffic Commissioner should have been reasonable about this issue. Many of his competitors were not required to have their tachographs analysed by the FTA. Further, it was wrong of the Deputy Traffic Commissioner to find that it appeared that he considered those offences revealed by TE Henharen’s analysis of charts to be minor. He concluded his submissions on this point by stating that whilst he had made errors in relation to this undertaking, they had not been wilful in nature.
13. Unusually in this case, the undertaking requiring FTA analysis of all tachographs does not state the number of times each year that tachographs should be submitted for analysis. However, the Appellant is an experienced operator and Transport Manager and he would or should have been aware that the purpose of the FTA analysis was two-fold: the first was to satisfy the Traffic Commissioner that the Appellant’s tachographs were being regularly and professionally analysed and that infringements were being properly identified and brought to the attention of the Appellant; the second was that the Appellant could act upon the findings in a timely fashion, providing the relevant documentation to the drivers with the appropriate advice and training if necessary. It follows that a compliant operator should be ensuring that their tachographs were being analysed on a very regular basis irrespective of the wording of an undertaking. In this case, the terms of the undertaking are clear and the Deputy Traffic Commissioner was right to conclude that the undertaking had not been complied with. Of the fifty four months between the commencement of the licence and the public inquiry, tachographs covering a total period of only sixteen months had been sent to the FTA. It is not permissible for the Appellant now to contend that in fact TE Henharen had analysed all of the other charts not sent to the FTA. Quite apart from the fact that it was not her role to provide such a service to the Appellant, she would not have provided the documentation that the FTA provided in order to alert drivers to infringements to aide education and training. It should be noted in any event, that it was not asserted by the Appellant in the documents provided to the Deputy Traffic Commissioner that TE Henharen had checked all of the other charts and of course, the Traffic Commissioner was not notified at any stage that the undertaking was not being complied with because the Appellant was relying upon analyses undertaken by VOSA (if that was the correct position). Be that as it may, the Appellant had quite clearly failed to comply with the undertaking and the Deputy Traffic Commissioner’s findings upon this issue are well made out.
14. As for the Appellant’s contention that he was otherwise complying with his responsibilities to ensure that the rules on drivers’ hours and tachographs were being complied with, he produced no evidence to show that the tachographs not sent to the FTA were being analysed, acted upon and records kept of steps taken to educate the relevant drivers. Of those charts that were analysed by the FTA, again, there was no evidence that any steps were taken to bring to the attention of the drivers, the infringements identified. The Appellant is critical of the Deputy Traffic Commissioner’s finding that his attitude towards those infringements identified was that they were only minor. But it was the Appellant himself who stated in his written submissions to the Deputy Traffic Commissioner that he had not acted upon the infringements identified by TE Henharen during her analysis of charts because they were of a minor nature and in those circumstances no written warnings to drivers were necessary. This was despite the fact that TE Henharen had in fact found infringements that would have justified fixed penalty notices or court proceedings if detected at the road side but that those offences were at the time of the analysis time barred from further action. The schedules provided as examples of how the Appellant was addressing this issue only helped to identify missing charts. They did not record any analysis of the tachographs themselves.
15. The Appellant described his history as being blemish free but the decision of Traffic Commissioner Beverly Bell to which he referred during the course of his submissions includes the following statement:
“In March 2001 the Vehicle Inspectorate conducted an investigation into the company and discovered that it was not, at that time, able to show whether or not its drivers were complying with the rules on drivers’ hours and compliance with the tachograph regulations”.
The call up letter to that company also referred to a Vehicle Inspectorate report regarding drivers’ hours and tachograph offences. Whilst it may be correct that neither the Appellant nor any driver employed by him have been convicted of any drivers’ hours or tachograph offences, the above passage from the Traffic Commissioner’s decision and the call up letter does not appear to support the description of the Appellant’s background with regard to tachographs and drivers’ rules as being unblemished. Further, during the course of the Appellant’s current licence, six drivers’ hours’ prohibitions had been issued. Again, we can find nothing in the Appellant’s point concerning the Deputy Traffic Commissioner’s findings in relation to his failure to comply with the undertaking that the FTA analyse all of his charts.
16. The Appellant’s next point was that his maintenance systems were reasonably satisfactory and that those defects in his systems as identified by VE Hilton could be categorised as “a slip”. His previous maintenance history was relevant and he referred the tribunal to the call up letter sent to Coachmaster Limited trading as Wingate Tours dated 25 February 2002 which listed only one immediate prohibition in respect of that company and that was against the background of that company operating for four years. He described the Maintenance Assessment conducted by VE Barnes in respect of his current licence in November 2006 (resulting in a warning letter) as “satisfactory”. The shortcomings certainly did not justify a public inquiry and at that stage, the Appellant’s previous period of operation must have been considered when making that decision. This meant that the Appellant had operated vehicles for nine and a half years “trouble free”. He further relied upon his solicitor’s submissions to Traffic Commissioner Beverly Bell recorded in her decision refusing the application for a licence by the Appellant and Jason Deering on 17 December 2003 to the effect that during the five years during which Coachmasters Limited and Wing Tours Limited operated “there had been no significant maintenance problems”. The Appellant submitted that he spent more money on his vehicles than any other operator in Liverpool, he had more maintenance staff than anyone else and that his vehicles had never received an “S” marked prohibition. Further, two of the three prohibitions issued by VE Hilton were for defects that would have been rectified that evening prior to the vehicles being taken out again.
17. The Appellant has a significant operating history. Whilst the Deputy Traffic Commissioner did not take account of that history, it is clear that the Appellant believes that she should have done. To that end, she would have had to take account of the three prohibitions that were listed in the call up letter sent to Wingtours Limited on 25 February 2002 as well as the prohibition issued to Coachmasters Limited along with the identical shortcomings identified in maintenance investigations that were marked as unsatisfactory which had been carried out in respect of both companies. The shortcomings were that the PMI intervals of six weeks were being stretched to intervals of between two and four months and there was no fully forecasted forward planner. Further, Traffic Commissioner Beverly Bell in determining the application for a licence by the Appellant and Jason Deering was not satisfied in that case that “preventative maintenance systems” were in place and that there were significant question marks regarding the authenticity of maintenance records and accompanying documents. Against the background of that information within the appeal bundle, we cannot agree with the Appellant’s description of his maintenance history prior to the grant of this current licence as being “trouble free”. However, we should emphasise that the Deputy Traffic Commissioner was right not to refer to or take account of that past history. In relation to the Appellant’s current licence, we do not consider that twenty four prohibitions in four years can be categorised as “a slip”, although none of those prohibitions have the aggravating feature of being “S” marked. The Deputy Traffic Commissioner undertook a careful analysis of the Appellant’s maintenance systems and concluded that the statement of expectation in relation to ensuring that vehicles were maintained in a roadworthy condition had not been complied with. Her process of reasoning was not such that we are required to take a different view and we do not do so. We consider her findings to be correct.
18. Finally, the Appellant submitted that the Deputy Traffic Commissioner should have come to a different decision and that it was clear that she had been influenced by Traffic Commissioner Beverly Bell’s opinion of the Appellant: “she does not best like me”. Mr Backhouse, the solicitor who represented the Appellant and Jason Deering in the hearing of the application for a licence had accused Traffic Commissioner Beverly Bell of being biased against the Appellant and she had subsequently recused herself of any further involvement in operator regulation of the Appellant. The influence of the Traffic Commissioner could be seen in the Deputy Traffic Commissioner’s decision where she describes the Appellant’s assurances to her as being “vague”. The Appellant submitted that the real issue in this case was whether his operation was getting better. Further, the balancing exercise had not been correctly carried out as the Deputy Traffic Commissioner had failed to take account of the fact that the Appellant had been undertaking brake testing, albeit on the Bowmonker machine, that he did have a driver defect reporting system and that training had taken place in 2006, 2007 and 2010. Further, that whilst the Appellant had not sent all of the tachograph charts to the FTA, there had been no significant infringements identified by TE Henharen on the charts that she had analysed.
19. We are satisfied that when faced with the absence of the Appellant at the public inquiry, it was perfectly proper for the Deputy Traffic Commissioner to refer to the comments made by Traffic Commissioner Beverly Bell in December 2003 when considering whether the Appellant’s assurances to her could be trusted. She found that they could not be and the comments of the Traffic Commissioner gave support to her view. There is no evidence that the Deputy Traffic Commissioner was influenced by the Traffic Commissioner’s opinion of the Appellant.
20. Turning to the balancing exercise, the Deputy Traffic Commissioner undertook a careful analysis of the positive and negative aspects of the Appellant’s operating history as it related to this licence. She accepted that roller brake testing was now being undertaken and that was a positive feature which she weighed into the balance. Likewise she accepted that the drivers had watched the DVD “Check it Out” in 2010. We are not satisfied that specific reference to the group training in 2006 and the training of the individual Simon Heath in 2007 when assessing the positive features of the Appellant’s case was a necessary component of the balancing exercise as those matters had been accepted and referred to elsewhere in the decision. Likewise, the detail of the analysis of TE Henharen. It might be said that the Deputy Traffic Commissioner could or should have referred to the absence of “S” marked prohibitions as a positive feature but we are satisfied that the absence of any reference to such a feature in the face of 24 prohibitions would not cause us to go behind the careful balancing exercise that the Deputy Traffic Commissioner undertook. For the avoidance of doubt, we are satisfied that to have spelt that out in the balancing exercise would not have made any material difference to the outcome in this case.
21. The crucial issue in this appeal is whether the Deputy Traffic Commissioner’s determination as to whether the Appellant could be trusted to operate a compliant and safe operation in the future was either wrong in law or whether her process of reasoning was such that this Tribunal should take a different view and interfere with her decision. We are satisfied that no such criticisms can be made of the Deputy Traffic Commissioner’s decision and in the result, the appeal is dismissed.
22. The order of revocation of the Appellant’s licence will come into effect at 23.59 on 23 February 2011.
Her Honour Judge J Beech
12 January 2011
