Decision

Decision for Carmel Coaches Ltd

Published 11 April 2024

0.1 IN THE WESTERN TRAFFIC AREA

1. CARMEL COACHES LTD – PH2069411

2. WRITTEN REASONS FOR THE TRAFFIC COMMISSIONER’S DECISION

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3. Background

Carmel Coaches Ltd sought a Standard International Public Service Vehicle Operator’s Licence authorising 1 vehicle only. The sole Director is Anthony Hazell, who has proposed that he might also act as Transport Manager, devoting 10 hours per week to those duties.

The applicant proposed one site as an Operating Centre: Unit 2-4 Coates Industrial Estates, Southfield, Nailsea, Bristol BS48 1JN. Preventative Maintenance Inspections would be carried out by at JRW Haulage Ltd at 6-weekly intervals.

The applicant had agreed to restrictions on a licence regarding the size and type of vehicle to be operated.

4. Hearing

The Public Inquiry was listed for 16 February 2024, in the Tribunal Room of the Office of the Traffic Commissioner in Bristol. The applicant was present in the form of Mr Hazell.

5. Issues

The Public Inquiry was called to allow the applicant further opportunity to satisfy me that the statutory criteria were met and specifically by reference to the following sections of the Public Passenger Vehicles Act 1981:

• 14ZA(2)(a) – stable and effective establishment.

• 14ZA(2)(b) – good repute.

• 14ZA(2)(c) – financial standing.

• 14ZA(2)(d) – professional competence by reference to a Transport manager meeting section 14ZA(3)(a) and Schedule 3.

• 14ZC(1)( a) – adequate facilities or arrangements for maintaining vehicles in a fit and serviceable condition.

• 14ZC(1)(b) – adequate arrangements for securing compliance with the requirement of the law relating to the driving and operation of those vehicles.

The applicant was directed to lodge evidence in support by 29 January 2024, including financial, maintenance and other compliance documentation. Immediately prior to the hearing I was provided with a bundle of letters, apparently prepared for a previous hearing:

• 17 June 2022 from Sarah Waats of Thomas Westcott Accountants referring to dealings with HMRC and Companies House.

• 13 June 2022 from Steve Price of Gallaher Insurance indicating prompt payment of bills.

• 29 June 2022 from Moira Popplestone of Dragonfly Holidays referring to a long association and wish to continue with that custom.

• 22 June 2022 from Sue Wonnacott of Okehampton District Community Transport referring to past custom over 30 years.

• 21 June 202 – email from Sarah Hardiman of Stoke Park Finance Ltd referring to previous successful financial transactions.

• 14 July 2022 from John Burch, CPT Manager Wales & West regarding his membership and attendance at trade body events.

6. Determination

For the sake of completeness, whilst websites suggested that the applicant could possibly be operating, there was no evidence confirming this. Carmelcoaches.org remains an active website but Mr Hazell communicated that this website is not his. The website shows a vehicle which VOL records as previously associated with Carmel Coaches Ltd (YC15 WCZ). I understand that no reviews have been published, which would suggest the operation of vehicles. The Carmel Coaches Facebook page is still active but apparently showed no posts since 2020, beyond new vehicle photographs in September 2022. Reference was also made to the Instabus website (a coach hire directory), but there was no evidence that Mr Hazell had signed up, so I did not find it necessary to pursue this. 

I explained at the outset that the applicant assumed the legal burden to satisfy me that the statutory criteria were met to the civil standard of proof, i.e. on the balance of probabilities; that these are the same criteria which apply to all similar applicants, but that it did so in the context of previous adverse findings. 

In a letter dated 24 October 2023 (pages 50 to 53), the Office of the Traffic Commissioner sought further information as to the basis of the application and by reference to the previous history of the joint Director and proposed Transport Manager. At the hearing Mr Hazell was concerned that the cover sheet to my bundle was not accurate. Again, for the sake of completeness, I record his association with the following operating history:

• 15 July 2022 – application PH2052225 by Mr Hazell for a Standard International licence, authorising 3 vehicles, with an external Transport Manager, was refused, following a Public Inquiry. The applicant failed to satisfy the Traffic Commissioner as to section 14ZA(2)(b). The Public Inquiry decision at pages 54 to 56 refers to adverse history over a period of 10 years or more. The Traffic Commissioner found that Mr Hazell had been reluctant to embrace change or to acknowledge past shortcomings.

• 8 April 2022 – Upper Tribunal dismissed the appeal by Carmel Coaches Ltd of the decision on PH2045119. The presiding Commissioner was entitled to look at the more recent history as a more reliable guide to what was likely to happen if the application was granted.

• 13 October 2021 – application PH2045119 by Carmel Coaches Ltd for a Standard International licence authorising 10 vehicles refused following a Public Inquiry on 4 October 2021. The applicant failed to satisfy the presiding Traffic Commissioner against sections 14ZB(2)(b) and (d) by reference to Mr Hazell’s repute, having retaken and obtained the CPC examination (following an on-line two-day refresher). The decision at pages 75 to 81 refer to his previous history and his repeated failure to acknowledge his previous shortcomings and lack of knowledge.

• 11 January 2021 – application by Carmel Coaches Ltd and Mr Hazell for a stay of the decision in PH1145790, refused by the Upper Tribunal (pages 89 to 92).

• 31 December 2020 – Standard International licence, PH1145790, held by Carmel Coaches Ltd and authorising 15 vehicles was revoked following a Public Inquiry (pages 99 to 113) where the Traffic Commissioner made adverse findings under section 17(3(aa) as vehicles were not maintained in a fit and serviceable condition and had been the subject of prohibition notices – 17(3)(c). The Commissioner noted that Mr Hazell appeared to mistake experience for expertise. The stay decision records his dogged refusal to acknowledge his inability to fulfil the role of Transport Manager. Mr Hazell lost his good repute as Transport Manager and was disqualified from relying on his Certificate of Professional Competence until he retook and gained a new qualification. The operator was therefore found to lack professional competence, under section 17(1)(a).

• 17 October 2014 – Upper Tribunal dismissed the appeal by Carmel Coaches Ltd of the decision on PH1098535 (pages 129 to 158). Counsel rereferred to Mr Hazell’s history as a sole trader between 1984 and 2011 but acknowledged significant compliance issues from 2012 which warranted serious regulatory intervention. Reference was made to the lending of discs to Carmel Coaches Ltd and described Mr Hazell’s wilful disregard for regulatory compliance. The Tribunal also noted serious and sustained maintenance failings.

• 13 May 2014 – following the Public Inquiry, but prior to publication of the decision, a vehicle operated by Carmel Coaches Ltd from the Exter depot was involved in a fatal road traffic incident. As noted by the Tribunal, this did not form part of the Traffic Commissioner’s reasoning.

• 6 June 2014 – Standard International licence, PH1098535, held by Carmel Coaches Ltd and authorising 40 vehicles was revoked following a Public Inquiry on adverse findings under sections 17(1)(a) and the operator and Mr Hazell were disqualified for a period of 18 months (pages 160 to 161).

During the processing of the application, Mr Hazell was asked to provide a letter explaining how he would ensure that he maintained effective management of the licence, what action he had taken to regain his repute and what he had done to improve his ability to manage transport compliance and the systems had had put in place to prevent recurrence. His response was (pages 48 to 49):

“I can assure the Traffic Commissioner there will be no repeat of any previous issues. I meet him regularly in the Bristol office.

I am not in any other regular gainful employment and can make myself available as necessary to visit the site or check records etc.

I have reduced the number of hours to 2 per day for 5 days which still exceeds the minimum recommended in statutory guidance.

Records of tachographs, working time and walk round checks will be kept at my private address. There will be no staff to supervise and I will be responsible for notifying defects direct to the maintenance contractor. I live 25 minutes from the operating centre.

I was disqualified on 16th January 2021 until such time that I passed the Transport Managers CPC exam. I passed this exam on the 12th March 2021 so I assume I am no longer disqualified.

During the last two years I have continued my professional development by attending numerous trade association meetings (CPT and COF) including presentations by Traffic Commissioners. I have attended tachograph and insurance investigation training as well as completing 3 modules of CPC driver training. In addition I regularly attend Public Inquiries to keep up to date with the latest decisions on non-compliance.

My current application is for 1 vehicle whereas my previous licences were for 40 and 15 vehicles. This will mean a very much smaller business to manage and I will be outsourcing maintenance to an experienced and well established contractor of good repute rather than relying on my own staff.” 

As repeatedly stressed to Mr Hazell, the legal onus was on the applicant to show that it satisfied the statutory criteria. The response of 30 October 2023 (pages 48 to 49) was not considered to satisfy the statutory criteria and it was decided to afford the applicant the opportunity of a Public Inquiry.

In its appeal decision of 8 April 2022, the Upper Tribunal found it necessary to set out and explain the background and previous adjudications. It dismissed all 6 grounds of appeal raised by Mr Hazell, including the suggestion that his 30 years of experience should outweigh the serious adverse findings made against Mr Hazell and this applicant. Instead, Mr Denton’s concerns were found to be “a realistic recognition of the difficulties a person in Mr Hazell’s position might face” and yet I found it necessary to repeatedly remind Mr Hazell of the context in which he sought to pursue this application.

In advance of the hearing, the applicant supplied short representations summarising the basis of the application relying on deposited funds well in excess of the prescribed sum (allowing for purchase of a vehicle upon grant) , the leased space on the Coates Industrial Estate, a maintenance contract with RJW Haulage Ltd for 6 weekly Preventative Maintenance Inspections with roller brake tests to be undertaken on each occasion and advance authority given to repair the vehicles. He suggested that a wall planner might be a bit over the top for an operation of this size, but referred to his diary system and that the contractor would chase him. The representations also suggested that tachograph data would be analysed by Trutac using a remote download facility. The evidence from Mr Hazell suggested that the possibility of remote downloads was less developed but that it was something of interest. He attended on-line webinars on the system in 2022 but accepted that things might have moved on a bit.

He had yet to purchase a vehicle, but there appeared to be sufficient funds. Mr Hazell suggested that he would be the only driver. Presumably, that accounts for the absence of a mobile ‘phone policy on this occasion. He suggested that he had been hiring his services out to licensed operators but through the applicant company. Mr Hazell was concerned that the issue had arisen during a goods operator Public Inquiry, which he had observed. This was one of 36 Public Inquiries he had apparently observed in the run up to this hearing and which he suggested was an indication of his intention to get things right in future. He appeared to be unaware of The Upper Tribunal decision in 2014/054 Bridgestep Ltd and Tom Bridge, the First-Tier Tribunal (Tax) decision in TC/2015/03681 RS Dhillon and GP Dhillon Partnership v The Commissioners for her Majesty’s Revenue & Customs, the relevant HMRC guidance, or even the publicly available guidance on the GOV.UK website regarding temporary workers.

The nominated Operating Centre appeared to be on an industrial site with sufficient space for the vehicle to enter and exit in forward gear and for a walk round inspection before first use. I heard that it is the site where the maintenance contractor is located. Mr Denton recorded that Mr Hazell is capable of making concessions, but only when challenged to do so. He presented the decision to nominate JMW as a positive indication of his abilities. It only followed the observations of Mr Rooney in July 2022 (page 55) and Mr Denton in October 2021 (page 79). He told me that the contractor had been instructed to undertake roller brake performance testing at every Preventative Maintenance Inspection and that the contractor had been given unlimited financial authority to repair the vehicle.

Mr Hazell had taken and gained a Certificate of Professional Competence in 1984 and 2021. The latter resulted from the disqualification referred to above. As was explained in 2014/050 Andrew Harris trading as Harris of Leicester, applying the decision in 2014/025 & 026 H. Sivyer (Transport) Ltd & Simon Sivyer: “the case of good repute it does not automatically follow that good repute is restored at the end of a disqualification. Instead it simply means that the person concerned has an opportunity to apply to act as a transport manager, (or in the case of disqualification from holding or obtaining an operator’s licence, to apply for a licence). It is open to a Traffic Commissioner to call in such an application to resolve any lingering doubts as to whether good repute, in either capacity, has, in fact, been restored. By contrast at the end of a period of disqualification the effect of paragraph 7B(3)(b) of Schedule 3 to the 1981 Act ceases and the person concerned can again use their certificate of professional competence as conclusive proof that they are professionally competent.” Mr Hazell had failed to grasp that, as per the Upper Tribunal decision in 2014/040 & 041 C G Cargo Ltd & Sukhwinder Singh Sandhu, a proposed CPC holder will not meet the requirement on an operator until that appointment is authorised upon a Traffic Commissioner being satisfied that the proposed transport manager meets all the requirements of retained Article 4 of Regulation (EC) No 1071/2009. His confusion regarding the employment status of drivers suggested that he was not up to date.

It might help Mr Hazell to understand that simply asserting that he has never broken the law does not amount to showing good repute. Even after all the “mitigation” he referred to, it had not occurred to him “that fitness to hold an operator’s licence is an essential element of good repute” (as per the Upper Tribunal decision in 2013/082 Arnold Transport Ltd), and that in this case, his fitness as the sole Director was relevant to my determination of the company’s application. As the Senior Traffic Commissioner’s Statutory Document No. 5 advises:  Directors have responsibility for the company which they manage, and it is therefore their responsibility to set the standards which employees are expected to meet and to ensure that those standards are met (as per the Tribunal decision in 2003/350 Al Madina Transport Ltd).

By continuing to insist on the good repute of Carmel Coaches since 21 September 2020, Mr Hazell appeared to downplay the relevance of his own past actions. He again referred to his involvement with operations since he was 16 and that he is now 73 years old. He referred to an absence of convictions in relation to roadworthiness, operation or driving. He referred to an absence of civil findings against him. In describing Carmel Coaches as providing a valuable and well-respected service despite the operating environment, he appeared to adopt the same stance as he took to the hearing before my colleague in 2021. He referred to efforts to continue operating during the pandemic and kept insisting that he had put safety first, despite previous factual findings to the contrary, which were upheld on appeal. As he stated at the hearing “I can’t see why there is any suggestion that I can’t comply with the law.”

I do not replicate the Upper Tribunal decision in these Written Reasons as they are a matter of public record. Mr Hazell attempted to pursue an application as a sole trader in 2022. In the written confirmation of his decision, dated 14 July 2022, Mr Rooney records that, even after the Upper Tribunal’s rejection of his appeal, he found Mr Hazell reluctant to embrace change and had given no demonstration that he is a changed person. For the reasons set our below, I share that view.

Mr Hazell claimed that he deeply regretted being called to Public Inquiry in the past. He claimed that his attendance to observe 36 Public Inquiries in the last 6 months was an indication of his understanding of the seriousness of his past mistakes. He denied downplaying past failures or glossing over the circumstances but thought it natural not to criticise himself and thought that he was giving a good impression of himself. He had told Mr Denton that he was a changed man, having taken the lessons of the past hearings to heart, but that was not reflected in his written submissions to me in which he claimed a “very compliant if not boring lifestyle.” He blamed his personality for seeking to mitigate away challenges and criticisms, but then invited me to look at his history. He told me that he had never appealed an annual test failure. I could not help but draw a contrast with his approach to decisions by other Traffic Commissioners. However, it was his attitude on the day of the Public Inquiry which informed my assessment.

It is true to say that the longer the hearing went on, the worse Mr Hazell made his position. Whilst saying that he was deeply sorry for what had happened in the past, he gave the distinct impression that the real cause of regret was the hardship which had been caused to his business. He told me at length about the responsibility he had felt to employees and customers but hesitated when it was put to him that it was his own actions which had been to blame. He continued to view it as bad luck. He referred to having a Green OCRS but that it was the school stop leading to an S Marked Prohibition, which had caused his problems. He failed to show much appreciation that he was responsible for the compliance failings which were subsequently reported, and which formed the basis of the decisions to which I refer above. He went further and suggested that the “the cause of my problems was basically a tragic accident.” He referred to that one event turning everything upside down but over which he had no control.

Mr Hazell had hoped to pass on a business to is children, but his involvement with his son has also been the subject of adverse comment. His membership of CPT is now in doubt, as he is no longer an operator. He told me that he does not now need to work but looked for “some understanding of what I’ve been through in the last 10 years”. Mr Hazell told me that it is important for him to obtain a licence. He views this as the way “to clear my name.” That is not a proper use of the licensing system.

As the Upper Tribunal identified in 2014/50 Andrew Harris t/a Harris of Leicester, an individual’s character, personality, ability, and leadership qualities (as relevant to an ability to ensure compliant operation and to effectively and continuously manage transport activities) are relevant factors to be taken into account when assessing good repute. At his last attempt to gain a licence before Mr Rooney, Mr Hazell had the sense to nominate an independent Transport Manager, who Mr Rooney described as credible. However, Mr Hazell failed to persuade the Traffic Commissioner that Mr Graham would be able to exert sufficient control. In the case of the application before me, I did not even have that modicum of assurance. It was proposed that Mr Hazell would be the sole Director, Transport Manager, and driver. Repeatedly referring to a golden history, particularly in that face of reality (as summarised above and set out in full within the pages of the Public Inquiry bundle), does not make it so. Mr Hazell failed to satisfy me that he met the requirements of sections 14ZA(2)(b) for good repute and 14ZA(2)(d) for professional competence through a Transport manager capable of exercising continuous and effective management. His apparent inability to acknowledge the past failings so that he might avoid them going forward confirmed for me that I should refuse this application.

R Turfitt

Traffic Commissioner

19 February 2024