0.1 In the Welsh Traffic Area
1. Composed Decision of the Traffic Commissioner
1.1 Yellow Travel Wrexham Limited (PG2044929)
The operator, Yellow Travel Wrexham Ltd, holds a basic nationwide operator's licence (PG2044929) authorising one lorry. The licence was approved on 8 July 2021. The sole director of Yellow Travel Wrexham Ltd is Christopher Jackson and the transportation supervisor is Darron Burns.
The Driver and Vehicles Standard Agency (” DVSA”) performed an examination into the operator's systems for adhering to upkeep commitments. Car Examiner (” VE”) Mark Williams went to the operator's operating centre in November 2022. His report discovered severe compliance failings consisting of the following:
- On the date of the check out the automobile inspector saw automobile GD07ZPL going back to the operating centre. Throughout a partial examination of this automobile the following security important problem was determined that the battery was insecure, which displacement made up a fire danger.
- The car likewise had the following security vital concerns:-
The safety belt buckle, 3rd from the back of the lorry was inoperative and not efficient in performing its desired function, 3rd from back. The nearside safety belt retractor was likewise inoperative and not efficient in performing its function.
The rear emergency situation door was blocked by an unauthorised seat plan, avoiding it's usage
The nearside front axle shock absorber lower installing bolt was broken, with the shock absorber suspending.
The guiding rack gaiter was divided and harmed, both offside and nearside
Required rear position light inoperative offside.
Stop light inoperative, offside back.
Interior vanity screen insecure.
Required markings missing out on, technique of operation of rear emergency situation door.
Required markings missing out on, rear emergency situation door not marked on the outside.
Fire Extinguisher not fitted.
Seats insecure, rear bolt missing out on from all seats, one of 2 in rear installing.
A partial examination was likewise performed on BX10DDN. An instant restriction was released due to a bulge identified in the tread location triggered by failure of the tires structure. The tire was changed on website by Lodge Tyres and a restriction clearance for this car was provided on the day.
The lorry likewise had the following security important concerns:-
Records not totally finished with the roadworthiness statement not signed off.
Of the records offered to inspect, the frequency of the assessment periods had actually been surpassed.
- Proof of automobile AV02KYJ not remaining in usage, nevertheless there was no VOR notification in the lorry file.
- There was documentary proof that walkaround checks were being performed, nevertheless the faults discovered on the 2 lorries checked at the fleet check recommends that these checks were inefficient.
- Upkeep arrangements/facilities were discovered to be entirely insufficient.
- Proof of a bad MOT test history, with automobiles going through the inaccurate kind of MOT.
- The business were not in belongings of a proper wheel nut torque wrench. They were not utilizing wheel nut tips or any other ways of extra wheel security. It was kept in mind that car BX10DDN was fitted with wheel embellishers which would avoid wheel nut security observation at the time of a motorists walk check. No particular tire management systems remained in location without any proof that tire ages were tape-recorded, or tire pressures being examined.
- The chosen Transport Manager had actually carried out the inaccurate kind of CPC refresher training in the type of for HGV's instead of PSV's.
3. Public Inquiry
Due to the details got from DVSA, the operator was contacted us to a Public Inquiry and the chosen Transport Manager, Darron Burns, was likewise hired his capability as Transport Manager.
The call up letters dated 9 February 2023 were sent out by tape-recorded shipment to the operator's correspondence address and by e-mail to the operator's e-mail address and to Mr Burns' address and e-mail. The call up letters encouraged the business and the Transport Manager that a Public Inquiry would be hung on 14 March 2023.
The general public Inquiry began at 2:00 p.m. on 14 March in Caernarfon. Present was business director Christopher Jackson and Transport Manager Darron Burns. At the start of the hearing Mr Jackson showed that he longed for Mr Burns to represent him in the procedures. I encouraged Mr Jackson and Mr Burns that this was not possible since Mr Burns was himself a celebration to these procedures and contacted us to this Public Inquiry in his own right to consider his prominence and expert skills as a Transport Manager. Mr Jackson specified that he did not feel great representing the business at the procedures, he had actually not looked for legal recommendations nor check out all the correspondence gotten from my workplace and would like an adjournment to look for suitable guidance and legal representation. I kept in mind that the general public query short did consist of a reaction to the DVSA from a company of lawyers following invoice of VE Williams' examination go to report by the business. Mr Jackson suggested that he would get in touch with those lawyers to consult and representation at the Inquiry and I adjourned the hearing to enable the business to do so. The general public Inquiry hearing was relisted for 23 May 2023 starting at 10:00 a.m.
By email of 9 May 2023 my workplace got a demand from the operator that the hearing, set for 23 May 2023, be adjourned due to a pre scheduled vacation incorporating the date for the relisted hearing. That email likewise connected a note from Mr Jackson's GP showing that he was unsuited to participate in work. An adjournment of the procedures noted for 23 May 2023 was then concurred by me and this matter relisted for 5 July 2023.
By e-mail outdated 14 June 2023, Laura Edwards (who explained herself as ‘co-owner' of the running business) asked for that the general public Inquiry be adjourned up until a minimum of September due to the director's continuing unfitness to work, which e-mail confined a more note from Mr Jackson's GP showing that he was unsuited to go to work.
Upon invoice of that email an action was sent out by letter dated 21 June 2023 from my workplace to the director at the noted e-mail address mentioning that my workplace would be not able to deal straight with Laura Edwards on the business's behalf unless and till he provided composed authority for her to handle this workplace on the business's behalf.
Verification that Ms Edwards might speak on behalf of the business was gotten by means of email, signed by Christopher Jackson, dated 22 June 2023 which led to my workplace sending out an email to Mr Jackson on 23 June 2023 notifying him that in considering his demand, I had regard to the significant public interest in hearings happening on the date set and to the Senior Traffic Commissioner's assistance that hearings need to not be adjourned unless there is an excellent and engaging factor to do so. The correspondence kept in mind that I had actually currently accepted adjourn this hearing two times. The business (represented by Mr Jackson, sole director), and Mr Burns (Transport Manager) initially appeared prior to me on 14 March 2023. That public questions hearing was adjourned to provide the operator additional chance to consult, assistance and representation at a re-listed hearing. The business went to the initial Public Inquiry hearing anticipating Mr Burns to represent it. As a celebration to the query in his own right, that plainly would have been rather unsuitable. Mr Jackson as the business agent was highly advised to look for instant legal suggestions, offered the major failings declared in the call-in letter and Public Inquiry Brief and the ramifications for the operator licence held by the business and for him personally of regulative action that might be taken. Mr Jackson verified that he would do so and the case was re-listed for 23rd May 2023.
The business then asked for an adjournment of the re-listed hearing as Mr Jackson was not available to participate in on that date due to the fact that he would be away on a pre-booked vacation and an ill note was likewise offered, signed by a GP stating him to be unsuited to go to work due to “stress and anxiety states” till 1 June 2023. I consented to that adjournment demand and the hearing was re-listed for 5 July 2023.
In thinking about the business's ask for a more adjournment, I had regard to the Senior Traffic Commissioner's Statutory Document 9 on Case Management and particularly paragraph 30, which advises celebrations that ask for adjournments on medical premises need to be supported by medical proof which specifies if and why a celebration can not participate in a hearing. Whilst a medical certificate was offered that suggested Mr Jackson was unsuited to participate in work (as previously due to the fact that he was struggling with “stress and anxiety states”), no medical proof was supplied to verify that Mr Jackson can not participate in a hearing and, if so, the reason.
Having actually thought about all the scenarios of this case, consisting of the general public interest from a roadway security point of view of this hearing case on the due date, and the history of adjournments, the very first of which was particularly to enable Mr Jackson to look for representation due to the fact that he preserved that he was not able personally to represent the business, I declined the adjournment demand.
The operator was encouraged the hearing would continue, as noted, at 10am on 5 July 2023. The business was likewise advised, as specified in the initial call-in letter and by letter of 21 June 2023, that somebody of listed below director level might participate in the general public query on behalf of the business however that my previous composed approval needs to be looked for.
My workplace then got verification that Mr Jackson's dad, Mr David Jackson, would be going to on behalf of the business which he had the ability to make binding choices on behalf of the business, consisting of monetary choice.
At 10:00 a.m. on 5 July 2023 no individuals existed on behalf of the operator. The general public Inquiry started at 10:15 a.m. on 5 July, permitting a more 15 minutes for the business agents to show up late. No individuals went to nor encouraged this workplace that they would not be going to.
The letter dated 5 June 2023 re-calling the operator to Public Inquiry on 5 July 2023 plainly mentioned that the operator required to resubmit monetary proof to reveal access to the needed level of monetary standing 14 days prior to the hearing date. At the initial hearing on 14 March 2023 the operator was warned that the minimal monetary proof produced for that hearing was not appropriate and it was discussed to Mr Jackson what was needed. He was notified that the business should produce proof of its monetary standing and the recall letter discussed once again precisely what that proof must consist of. The operator stopped working to offer that proof.
The operator did supply some upkeep files which were asked for in the initial contact letter dated 9 February 2023. These were sent out, as asked for, to VE Williams and he produced an upgrade report dated 9 March 2023 for the function of the questions on the basis of the files gotten from the operator and transportation supervisor. That upgrade report was served on all celebrations to the questions and was gotten by me in advance of the questions on 14 March 2023.
By e-mail dated 3 July 2023, my workplace got a letter from Mr Jackson authorising his dad, David Jackson, to speak on behalf of the business at the general public query hearing. The letter made some additional representations and connected some pictures, a few of which seemed screen shots drawn from social networks and connecting to other operators, with the majority of not identified with any description besides “General Maintenance”. Mr Jackson showed that his daddy would remain in presence which I might check out these matters even more with him at the query hearing. He stopped working to go to without any description offered.
At 7:15 a.m. on 5 July 2023, the early morning of the reconvened Public Inquiry hearing, my workplace got an ask for an adjournment of these procedures as they related to the Transport Manager Mr Burns. His e-mail was described my quickly prior to the beginning of the hearing and, considered that this was his very first ask for an adjournment of procedures which he was obviously not able to go to due to health factors I showed that I would accept his demand, with medical proof to be offered within 7 days, which the query to consider his prominence and expert skills would be re-listed.
I had regard to the general public interest in the matter case as noted, especially provided the history of adjournments and my rejection of the operator's most current ask for the factors detailed. I was pleased that there were no other elements where the interests of justice needed an adjournment of the hearing in relation to the supposed operator licence compliance failings by the business which were major and stabilizing the clear roadway security threat to guests and the taking a trip public. I continued with the general public query hearing in regard of the operator.
I made the following findings based upon all the proof prior to me, as set out above, and on the balance of likelihoods:
The operator made declarations when looking for the licence which were incorrect or have actually not been satisfied, particularly that cars would be checked at the assured periods (area 17( 3 )( a) of the Act refers). I thought about the proof of VE Williams and the operator's reaction letter from Backhouse Jones lawyers, because regard. Even permitting the missing examination reports which had actually apparently been kept by the previous upkeep company, with whom the operator was now in disagreement, VE Williams proof was that he might still see from the routine upkeep evaluation (” PMI”) records that were offered to him at the time of his check out that the assessment frequency durations had actually been extended. At the time of this hearing being employed March, just one single PMI record had actually been offered to VE Williams which might potentially have actually been a very first usage examination report, instead of a PMI report. It recognized no brake test type having actually been finished and had actually not been properly signed off. There were no PMI records supplied, as asked for, from the brand-new upkeep company;
The operator has actually stopped working to satisfy the endeavors he registered to when he made an application for the licence, particularly to keep lorries fit and functional; chauffeurs to report without delay any flaws that might avoid the safe operation of automobiles and report flaws without delay in composing; and operator to keep records for 15 months of chauffeur problem reports, security evaluations and regular upkeep and make them readily available on demand (area 17( 3 )( aa) of the Act refers);
The operator's cars have actually been released with restriction notifications by the DVSA in the previous 5 years (area 17( 3 )( c). of the Act refers);
By stopping working to supply the monetary proof in advance of the general public query as asked for, or to make any representations in advance of the questions regarding its monetary standing, or to participate in the hearing to make representations, I discovered that the operator no longer fulfilled the compulsory statutory requirement to be of proper monetary standing (area 14ZA( 2) of the Act refers). That is obviously a compulsory ground for cancellation of the licence under area 17( 1 )(a) of the Act. I likewise made a finding that the operator is no longer fulfills the statutory requirement to be of great prominence (area 14ZA( 2) of the Act refers, in view of the failures discovered and described above, and in view of its failure to engage with the general public query procedure by stopping working to supply the monetary proof asked for or to go to the hearing, having actually currently been recommended that it would continue today which Mr Jackson senior might speak on behalf of the business.
5. Stabilizing workout and choices
I thought about whether I might enable this operator's licence to continue even if I were not required to withdraw it since of a failure to fulfill the compulsory requirement of monetary standing. Having regard to the Senior Traffic Commissioner's Statutory Document 10, Annex 4, and having actually thought about all of the proof prior to me, stabilizing unfavorable and favorable functions of the case, I position this case in the “serious to major” classification. There were relentless operator licence failings with an insufficient action from the operator by the date of this public query hearing when it got in touch with 14 March 2023. The documents supplied to the DVSA for the function of the query hearing was insufficient and showed a continuing absence of compliance. There were negligent acts by the operator and chauffeurs which caused an excessive threat to roadway security. The restriction notifications that were provided to this operator's car simply after it went back to the operating centre, having actually simply finished the early morning run, show a stunning method to security, with inoperative seat belts, no fire extinguisher on the lorry, an insecure battery which made up a fire danger among others of the flaws discovered. Of specific issue to the DVSA inspector was a seat that had actually been put versus the rear emergency situation door implying that there was no access to the emergency situation door deal with for guests. The VE discovered that the emergency situation door might just be opened from the beyond the automobile. That automobile had actually simply returned from carrying guests that early morning and remained in a hazardous condition, with many flaws which must have been gotten by the motorist carrying out the walkaround check prior to usage. In spite of motorist walkaround checks being recognized as insufficient by VE Williams, there is proof that the operator stopped working to resolve this and VE Williams' upgrade report dated 9 March 2023 notes continuing issues because regard. He offers examples from the operator's current records of insufficient walkaround checks, a lot of the checks finished in less than 10 minutes and consisting of a walkaround look at 17 February 2023 where the chauffeur examined 59 seat belts in 43 seconds. He likewise keeps in mind that the business director, Mr Jackson, is tape-recorded as performing a complete check in just 2 minutes 52 seconds, examining 51 safety belt in just 1 minute 13 seconds. The brand-new upkeep supplier obviously utilized by the operator and contributed to its licence prior to this public questions called my workplace and asked to be eliminated from the licence, which it was. The mentioned upkeep service provider is now Tim Hewitt, who is internal to the business and referred to as a motorist in the general public query quick proof (though as “upkeep supervisor” on the current business headed paper– operator's letter of 3 July 2023 refers). I keep in mind that he is among the chauffeurs called by VE Williams who stopped working to carry out an appropriate motorist walkaround check and in relation to whom an issue is raised (at page 64 of the short) that he signed off a lorry as okay on 24 October 2022 after issues had actually been raised about brakes not working and it being “hazardous”, in spite of it having actually stopped working a brake test that exact same day. It is clear to me that there have actually been inadequate modifications made, in specific to upkeep plans and chauffeur problem reporting to make sure future compliance. I have actually likewise taken into consideration the operator's restriction rate and MOT pass rate, which are bad. On the favorable side there is little to weigh in the balance, although I have actually appraised the absence of previous unfavorable history, albeit that the licence has actually just been in force because 2021. The unfavorable functions of this case, as set out in my findings above, considerably exceed that restricted favorable.
I need to withdraw this licence on monetary standing premises, as currently mentioned, however it is clear to me in thinking about the balancing workout that when addressing the Priority Freight (2009/225) concern of how most likely is it that the operator will comply in the future the response is “not likely”. That remained in view of the findings I had actually made and described above. In thinking about the Bryan Haulage (no. 2)(2002/217) concern “is the conduct such that the operator ought to be put out of service?”, I had regard to the favorable and unfavorable functions of the case. The proof showed to me that the operator stops working to run its lorries in a certified way and is no longer fit to hold an operator's licence. This was a bad case and the beginning point for regulative action was “extreme to major”. I likewise took the view that other operators who perform their organizations in a certified way would be surprised if another operator were allowed to run lorries versus this background. I likewise weighed in the balance the security of travelers and the taking a trip public. I thought about that it was both proportionate and proper to respond to the Bryan Haulage concern in the affirmative and thought about that cancellation was the proportional regulative action. I chose to withdraw the licence with result from 23:45 hours on 5 July 2023.
I likewise thought about the concern of disqualification under area 28 of the Transport Act 1985. I had regard to the Senior Traffic Commissioner's Statutory Document 10 and advised myself that disqualification is not an instructions that must consistently be bought. There might be cases where the severity of the operator's conduct is such that a traffic commissioner might correctly think about that both cancellation and disqualification are needed for the function of imposing the legislation. I was pleased on the proof that this operator can not be depended abide by the regulative program which the goal of the system, the defense of the general public and fairness to other operators needed that the operator be disqualified. I kept in mind paragraph 65 of the statutory file which specifies that a clear example of such a case is where an operator stops working to participate in a public questions after an application to adjourn the hearing has actually been declined. In spite of asking for that Mr David Jackson be permitted to participate in, and approval having actually been offered (following my rejection to approve a more adjournment), there was no presence by the business and it stopped working to engage with the questions procedure. I directed that the running business be disqualified from holding another operator's licence for a duration of 2 years with result from 23:45 hours on 5 July 2023.
In thinking about the suitable length of the disqualification order I had regard to paragraphs 69 and 108 of statutory file 10, and my balancing workout is currently set out above which likewise discusses my thinking for this disqualification.
Traffic Commissioner for Wales
5 July 2023