Consultation outcome

Summary of Responses

Updated 13 March 2023

1. Introduction

The Traffic Commissioners for Great Britain are independent specialist regulators. They are responsible for the licensing and regulation of commercial vehicle operators and regulating the conduct of professional drivers in the lorry, bus and coach industries.

As part of their key strategic objectives, the commissioners aim to promote a safe road transport industry which supports compliance, fair competition and protects the environment.

The Senior Traffic Commissioner’s Statutory Documents comprise of Statutory Guidance and Statutory Directions. They describe how traffic commissioners may apply the law and a balanced approach to the exercise of their regulatory powers. They provide useful reference to operators, transport managers, drivers and those that represent them.

2. What we consulted on

From 12 December 2022 to 16 January 2023, the Senior Traffic Commissioner consulted on proposed changes to the Statutory Documents to reflect legal changes and incorporate recent decisions of the Upper Tribunal, with additional guidance, where appropriate.

During the consultation stakeholders were asked to comment on a number of proposed changes to the following Statutory Documents:

• Document No. 0: introduction to operator licensing, the statutory guidance and statutory directions

• Document No. 1: good repute and fitness

• Document No. 2: finance

• Document No. 3: transport managers

• Document No. 4: operating centres, stable establishments & addresses for service

• Document No. 7: impounding

• Document No. 8: delegation of authority (the delegation of functions to staff, arrangements for multiple licence holders and lead traffic commissioners)

• Document No. 9: case management

• Document No. 10: principles of decision making

• Document No. 12: appeals

3. Executive Summary

A total of 3 responses were received. We are grateful for the time respondents took to reply.

Organisation	Number of responses
Trade associations	3

The responses generally welcomed the new changes proposed in this consultation. Respondents have sought further guidance in some areas. In this regard, it should be noted that some of the change to guidance results from Upper Tribunal decisions and that the Senior Traffic Commissioner cannot provide guidance for every possible scenario or change the law.

4. Detailed Summary of Responses

4.1 Document No. 0: introduction to operator licensing, the statutory guidance and statutory directions

This document generated the most detailed responses. The responses were generally receptive to the proposed changes, with comments seeking further clarity for specific circumstances.

Paragraphs 4/5

This paragraph sets out the requirement to apply for sufficient authority for extended operations and that vehicles may require authority, even if they are not currently in use.

One respondent suggested that the wording is amended so that the concept of an ‘adequate margin’ to cover all operational circumstances is established. They went further to express their belief that the case law does not specify that a vehicle in possession should be specified on a licence and suggested that a ‘vehicle off road’ notice might be acceptable where a SORN is not possible, this would allow greater flexibility.

Another respondent suggested that there was a need for yet further clarification around fleet replacement cycles as they would fall outside of the current wording.

Paragraph 7

This paragraph provides a definition for what is considered temporary in relation to vehicles being removed from an operator’s licence.

Two respondents suggested that the term temporary needed further definition to avoid confusion or inconsistency of approach.

Paragraph 8

This paragraph describes the Senior Traffic Commissioner’s conclusion that vehicles which are not being used and are subject to a Statutory Off Road Notification do not require authority under an operator’s licence.

One respondent requested further clarity to highlight when a vehicle is not classed as being in possession, and suggested a small change in the wording of the paragraph.

Paragraph 27

This paragraph details the requirements of vehicle authority, insofar as it relates to public service vehicle operators and the core requirements of the operator licensing system.

One respondent sought to highlight the differences in the legislation between goods vehicle and public service vehicle operators when applying the facts of 2021/2165 Connor Construction (South West) Ltd (2022) UKUT 177 (AAC).

Paragraph 31

This paragraph sets out the need to ensure that vehicles and trailers are roadworthy and that new vehicles have undergone a first use inspection before entering into service.

A respondent raised possible impracticalities of applying this paragraph to traction only haulage in the context of first use checks. It also questioned the relevance of references to British Vehicle Rental and Leasing Association (BVRLA) accredited inspectors.

Paragraph 68

This paragraph forms part of the relevant case law on exemptions under Schedule 3 of the Goods Vehicles (Licensing of Operators) Regulations 1995 and specifically the identified case on the use of recovery vehicles.

There was a request for wording to cover a scenario where a vehicle is taken out of service and stripped for parts, and then taken away by a recovery vehicle to a recycling centre. It was suggested that the vehicle had been made deliberately unroadworthy but did not fit the exemption when used in this way, and that it should be covered by the exemption.

STC Comment

In general, it should be remembered that the guidance and directions cannot be overly prescriptive and there must be an assumption that the reader has a certain level of knowledge. The statutory intent is to provide guidance and directions to traffic commissioners. Following the responses, the Senior Traffic Commissioner has included case examples in the document on the type of licence which might be required.

The reference to SORN is a factual reference included after a discussion with National Stakeholders. Vehicles subject to SORN cannot be used on the public road except for limited exceptions. A vehicle which is subject to a ‘vehicle off road’ notification does not offer the same level of assurance that the vehicle cannot lawfully be used by the operator. In any event, the Senior Traffic Commissioner does not have the statutory power to be so prescriptive.

Advice on vehicle authority is contained in other published guidance available in the goods vehicle operator licensing guide which provides details on margins in the terms identified by the respondent. For clarity the wording will be amended in the published version.

There is no statutory power to import specific deadlines or limits. The Senior Traffic Commissioner is entitled to rely upon a dictionary definition for a term that appears in statute or case law which is not otherwise defined.

In relation to the comments regarding paragraph 27, the Upper Tribunal made a specific reference to the mandatory and continuing requirements and the maintenance standards that are common to the regulated industries. This paragraph advises operators to consider the number of vehicles required and to anticipate an increase in business or emergencies, advising them of the relevant existing provisions. There is no additional regulatory burden imposed.

Paragraph 31 is intended to address vehicles and trailers that have been off the road for a period of time. It draws heavily on the DVSA Guide to Maintaining Roadworthiness, and includes reference to accredited inspectors. The Guide to Maintaining Roadworthiness addresses the operation of third party trailers in a different section. It would not be appropriate for the Senior Traffic Commissioner to enter into a separate discussion on the revision of the DVSA guide as part of this consultation.

In relation to the status of recovery vehicles, the Senior Traffic Commissioner refers the respondent to the specific legislation and established case law.

4.2 Document No. 1: good repute and fitness

There were no comments on this document.

4.3 Document No. 2: finance

One respondent commented on this document and the approach to the assessment of finance for new applicants for an operator’s licence. It was suggested that a broader approach should be taken to finance by reference to the capital and reserves of companies rather than a need to demonstrate a balance in a bank account over a period.

It was suggested that a wider consultation on the issue of financial standing should be undertaken with the trade associations.

STC Comment

The comments seem to refer to additional steps not outlined in the Statutory Document. Traffic commissioners must apply the legal tests set by Parliament. The financial amounts which must be demonstrated are set by the governing legislation and can be demonstrated in a number of ways including certified annual accounts, bank guarantee or a document issued by a financial institution stablishing access to credit.

The test of availability and continuing requirement has long been established in case law. The guidance sets out the legislation and the case law on which the directions are based.

4.4 Document No. 3: transport managers

One respondent stated the inclusion of “sole responsibility” in the definition for an external transport manager is gold plating of the wording used in Article 4 of EC Regulation 1071/2009 (as retained in UK law). It was commented that it would be problematic in application, citing an example of an external transport manager utilising in-house human resourcing support.

Two respondents raised concerns over the scale of information required on application, citing the burden on applicants and potential for delays in the processing of applications. One suggested reverting to a previous stated position of seeking assurances at the point of application that the operator and transport would meet the requirements.

Another respondent commented that the changes to Annex 1 were pragmatic and helped to clarify requirements.

STC Comment

The Senior Traffic Commissioner is grateful for comments and understands that once the approach has been set in the Statutory Document there will be a need to revisit the questions posed on the application form.

The reference to “sole responsibility” was intended to clarify the guidance on external transport managers who may be designated on up to four operators’ licences with a combined fleet size of over 50 vehicles. The revised guidance confirms that they can act jointly with another transport managers.

It is accepted that transport managers may need to be supported by other experts within a business, but the legal responsibility sits with the transport manager who has attached his/her own repute and professional competence to an operator’s licence. This is what the wording is intended to convey.

The operator licensing system is based on trust and historically the traffic commissioners have accepted declarations from transport managers that they meet the legal tests. However, the traffic commissioners are increasingly seeing transport managers appear before them at public inquiry with seemingly no knowledge of the requirements. As gatekeepers, the traffic commissioners need to be satisfied that transport manager applicants meet all of the statutory tests, and this is on the basis of a qualitative assessment.

4.5 Document No. 4: operating centres, stable establishments & addresses for service

Three separate respondents commented on the changes set out in paragraph 57 which concerns the use of vehicles and the relevance of licence authority when considering suitability of operating centres.

One respondent requested that the text in paragraph 57 of the document be amended to reflect the position when operators are swapping their fleets over, and where ownership in this period may exceed their licence entitlement.

Another respondent wished to reiterate that because of the legislative differences between public service vehicles and goods vehicles, the case law should not be applied to both regimes and the differentiation should be more explicit in the document.

One further respondent commented on the same basis as those given for the revised changes to Statutory Document No. 0.

STC Comment

The Senior Traffic Commissioner understands that the issues raised in this document are largely the same as those in Statutory document No. 0. The concept of proportionality applies (please see Statutory Document No. 10 for principles of decision making) but the traffic commissioners must apply the law.

This paragraph is concerned with the capacity of an operating centre which may have been overlooked in some of the responses. The question of capacity for an operating centre is common across both the PSV and goods industries. Whilst appearing in different provisions, both require there to be a sufficient capacity at an operating centre to hold the vehicles normally kept there.

4.6 Document No. 7: impounding

The respondents raised no additional comments on this document.

4.7 Document No. 8: delegation of authority (the delegation of functions to staff, arrangements for multiple licence holders and lead traffic commissioners)

One respondent sought assurances that providing DVSA with operators’ email addresses is compatible with General Data Protection Regulations. The respondent suggested that an operator should be informed if their email address was provided to a third party and that the term ‘emergency or urgent situation’ should be clarified.

STC Comment

The Senior Traffic Commissioner noted the natural concern for data, however, this approach is long standing and detailed in the Traffic Commissioners’ Privacy Notice. That notice sets out who uses operator data, the purposes and the lawful basis under Article 6(1)(e) of the General Data Protection Regulation.

Stakeholders will anticipate that the traffic commissioners have arrangements in place to manage data. The Traffic Commissioner Information Governance Framework was subject to expert independent advice by a Data Protection Officer.

There are established processes for agreeing the release of information. These processes were well tested throughout the pandemic and the exit from the European Union to ensure that the industries could access the information to assist their businesses and comply with the law.

4.8 Document No. 9: case management

One respondent commented on this document and supported the approach detailed for taking evidence from abroad.

4.9 Document No. 10: principles of decision making

One respondent commented on the document, supporting the interpretation of ‘trust’, but requested that additional plain-English guidance is issued to comply with the Regulators’ Code.

STC Comment

The wording reflects the Senior Traffic Commissioner’s position as set out in Statutory Document No. 0. This accords with the statutory powers contained within the Public Passenger Vehicles Act 1981, in that the guidance and directions are issued by the Senior Traffic Commissioner to traffic commissioner colleagues.

However, the requirement to provide accessible guidance is recognised. The limited resource available within the Office of the Traffic Commissioner has been focussed on creating additional guides for operators, as well as undergoing a review of the existing guides. That work is ongoing.

The traffic commissioners will continue to review and improve that guidance as they committed to do as part of their Strategic Objectives. A recent example of this is the suite of documents now sent to new entrants to the industry providing advice on where to find guidance to assist their compliance.

4.10 Document No. 12: appeals

One respondent commented on this document to show support for the limits of delegated authority that the traffic commissioners award to staff in the Office of the Traffic Commissioner.

5. Next steps

The Senior Traffic Commissioner has issued the documents taking into account the responses to the consultation.

On publication of the revised documents the Senior Traffic Commissioner will withdraw the contingency and emergency planning, coronavirus (COVID-19) Statutory Document and the Coronavirus (COVID-19): advice for heavy goods (HGV) and public service vehicle (PSV) operators.

Drawing on the experience of the pandemic the Senior Traffic Commissioner will also review the practice that correspondence is sent to all known addresses prior to certain action being taken against a licence. This may include, for example, letters sent to an operator advising that a traffic commissioner is considering the revocation of a licence due to a statutory requirement appearing not to be met. Currently, these letters are sent to every address on file by recorded delivery post, as well as to an email address.

This practice reflects historic case law originating from the Transport Tribunal. Other courts and tribunals have adopted modernised approaches recognising established good service principles and changes in behaviour and the way people work, particularly the wide use of electronic communication.

It is a condition on every operator’s licence to notify the traffic commissioner of any change in the correspondence address. Therefore, the Senior Traffic Commissioner proposes that correspondence be served on the notified correspondence address provided by the operator, and the email address provided only. Service will continue to be made by recorded delivery post but may be supplemented by first class post in certain circumstances. This will target limited public resources, whilst maintaining an appropriate level of contact.

The Senior Traffic Commissioner welcomes additional comments on this by 11 April 2023.