Decision

Decision for Bakers Waste Services Ltd & P.Baker & A.Yates (TMs)

Published 29 June 2023

0.1 In the Eastern Traffic Area

1. Traffic Commissioner’s Written Decision

1.1 Bakers Waste Services Ltd – OF1134284 & Paul Andrew Baker & Andrew Yates – Transport Managers

2. Background

Bakers Waste Services Ltd holds a Standard National Goods Vehicle Operator’s Licence authorising 57 vehicles and 25 trailers. The Director listed on the licence is Paul Andrew Baker who, with Andrew Yates, was also the Transport Manager until 6 March 2023. Checks of the Companies House register also showed that Michael Leonard Fentem was appointed as a director on 30 November 2020, which was not notified; James Richard Wainwright was appointed on 4 September 2019 and resigned on 11 December 2019, but this was not notified; and Daren Stephen Geoffrey Woolnought was appointed on 1 July 2019 and resigned on 26 February 2020, but again, this was not notified. This was described as a personal oversight by Mr Baker.

There are four Operating Centres at: Granite Close, Enderby, Leicester LE19 4AE; 70 Boston Road, Beaumont Leys, Leicester LE4 1AW; Sparkenhoe Works, Desford Lane, Kirby Muxloe, Leicester LE9 2BG; Units 17-19 Martins Yard, Spencer Bridge Road, Northampton NN5 7DU. Preventative Maintenance Inspections are said to be carried out in house, using an on-line reporting system, and by MN Commercials Ltd at 6-weekly intervals. The operation involves vehicles with cherished plates.

The operator was called to a Public Inquiry on 4 August 2014, following an unsatisfactory maintenance investigation, which arose when the operator attracted prohibition notices. The Deputy Traffic Commissioner apparently accepted undertakings to appoint a second Transport Manager, to procure a compliance audit and for Mr Baker to attend CPC refresher training. The repute of the transport manager, Paul Baker, was found to be tarnished, but the presiding Commissioner was persuaded to issue a warning to the operator and Mr Baker.

The operator was apparently then called to a Preliminary Hearing on 30 August 2016 following an unsatisfactory maintenance investigation relating to the issue of prohibition notices and the annual test failure. The operator gave an undertaking for driver training and to then audit the walk round checks, which is still on the licence. The operator was issued with a further warning.

Lastly the operator was called to a Public Inquiry on 10 September 2019 due to a maintenance investigation which identified that Preventative Maintenance Inspection intervals had been exceeded by up to 6 months, there had been poor planning, poor maintenance resulting in prohibitions including ‘S’ marked and failures at annual test, a fixed penalty notice. The Deputy Traffic Commissioner permitted the withdrawal of the application to increase authority to 70 vehicles and 10 trailers but curtailed the licence for a period to 21 October 2019. The undertaking to employ a second Transport Manager had not been complied with. Mr Baker’s repute was again found to be tarnished.

Mr Baker was the sole Director of Driving Talent Ltd, which held a Standard National licence from 18 December 2018 to its revocation on 14 June 2019 for lack of a Transport Manager. An appeal made to the Upper Tribunal was subsequently struck out.

3. Hearing

The Public Inquiry was listed for today, 21 June 2023, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. was present in the form of Paul Baker, Director and Transport Manager, accompanied by Vicki Bunting and Carl Lake, proposed CPC holders, and Russ Robinson, Operations & Logistics General Manager, represented by Laura Newton, solicitor, of Smith Bowyer Clarke, and assisted by Andy Miles, consultant. Mr Yates failed to appear, despite the letter of 19 May 2023 being sent to his address in Derby.

4. Issues

The public inquiry was called following a Preliminary Hearing on 30 January 2023 when it was determined that there may be grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

• 26 (1)(b) - condition to notify changes including management, maintenance, and the ability of the Transport Managers.

• 26 (1)(c)(iii) – Prohibitions.

• 26(1)(e) - statements of intent relating to inspection intervals and compliance with conditions.

• 26(1)(f) - undertakings (vehicles to be fit and serviceable, to employ effective driver defect reporting, full maintenance records).

• 26(1)(h) - material change.

• 27(1)(a) - good repute, financial standing, TM meeting Schedule.

• 28 - Disqualification.

Paul Andrew Baker was called separately to consider whether he had exercised effective and continuous management and whether he should be allowed to continue to rely on his Certificate of Professional Competence by reference to section 27(10(b) and Schedule 3.

Andrew Yates was called separately to consider whether he had exercised effective and continuous management and whether he should be allowed to continue to rely on his Certificate of Professional Competence by reference to section 27(10(b) and Schedule 3.

The operator was directed to lodge evidence in support by 7 June 2023, including financial, maintenance and other compliance documentation. The record of the Preliminary Hearing indicates that Mr Baker was eventually able to supply the completed figures and table, as at Annex 3 of Statutory Document No. 2, but that HSBC officers had not verified the content. I permitted a Period of Grace of 4 months, so that other options might be explored if the bank continues not to support the operator. The Period of Grace was due to expire on 30 May 2023. On 16 and 17 May 2023, the operator (and its bank) submitted financial evidence, but it was still not in accordance with the Senior Traffic Commissioner’s Directions.

By letter received on 19 June 2023, Ms Newton suggested that I accept an ‘explanatory cover letter’; current account statements of 21 May 2023; credit card statements, last issued to 7 June 2023; a further letter from an HSBC Account Manager regarding invoice factoring, but referring to daily data, and a final letter from an HSBC Relationship Director purporting to verify ‘the statements’. The operator was already on notice from the previous hearing that financial evidence must be admissible. Ms Newton argued that I should depart from the Senior Traffic Commissioner’s Statutory Guidance, to which I must have regard, and Statutory Directions, which I must follow, for the convenience of this Clearing House. It was suggested that the letters are ‘acceptable’, but I could no such justification in Statutory Document No. 2. The operator was aware of the approach directed in Annex 3 of that Statutory Document on Financial Standing. The invoice factoring was described as the main source of income and cash flow including for the drawing of wages. It was suggested that I should depart from the published approach to adopt one which is most beneficial to the operator. Ms Newton cites the Upper Tribunal’s decision in the case of Jay’s Vehicle Movers Ltd [2022] UKUT 00280 (AAC) as authority for that approach, which I now reject.

In 2012/017 NCF (Leicester) Ltd the Upper Tribunal explained the purpose of the requirement by reference to Recital 10 of the retained provisions of Regulation 1071/2009. So “it is necessary for road transport undertakings to have a minimum financial standing to ensure their proper launching and administration”.  In particular the requirement is intended to ensure that vehicles can be operated safely because the operator can afford to maintain them promptly and properly. There is a strong public policy argument for ensuring consistency in the assessment of available evidence and in support of the “Gatekeeper” function. The approach adopted in 2022/246 Jay’s Vehicle Movers Ltd did not take account of the impact of sections 4C(1) of the Public Passenger Vehicles Act 1981 and section 1(2) of the Goods Vehicles (Licensing of Operators) Act 1995 and their relevance to the test posed by the Court of Appeal in Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695 and must therefore be distinguished. Where an appeal decision does not address existing and leading case law, its use as a precedent is limited if at all. If, as Ms Newton suggests, there are significant funds moving through the business, it should be possible for the operator to demonstrate this, which was the purpose of the Period of Grace. The letter from a Mr Hague confirmed the availability of drawn down from sold invoices was increased to 90% from 9 June 2023.

5. Summary of Evidence

There was no issue at the Preliminary Hearing: following an S marked prohibition a maintenance investigation was carried out on 8 June 2022. The result was unsatisfactory. The Case Summary refers, in bullet form:

• Preventative Maintenance Inspection intervals exceeded on 4 out of 38 occasions, a missing record for T9 BWS and a pre-test inspection but no record for C349782.

• The Examiner contrasted the competed digital records with paper versions.

• Some external inspections were not signed off as roadworthy.

• No brake test results recorded after major work carried out on brakes.

• Defects not always accurately described.

• No tyre pressures recorded.

• Insufficient action taken on brake pads at the appropriate inspection, so that they are allowed to disintegrate.

• Not all defects recorded at walk round checks. Advice was given to issue drivers with a suitable system for reporting any defects which occur during the day.

• Annual test pass rate below national average.

• No system in place to monitor Adblue usage.

• The issue of prohibitions (including an S marked).

In his response to DVSA, Andy Yates (Fleet and Compliance Manager) set out the steps the operator has taken to improve the maintenance systems:

• Improvements to the annual test investigation report (completed when a vehicle fails annual test).

• Toolbox talks to be carried out monthly. A toolbox talk has been distributed to all Workshop Technicians on headlamp aim.

• Toolbox talks are to be carried out on walk round checks every 3 months. (I noted a memorandum dated 18 October 2022, referring to 12 and 19 November 2022 and individual records to confirm receipt of driver vehicle check instructions, variously dated).

• Roller brake tests to be carried out every 12 weeks. The brake testing machine to be cleaned once a week.

• A further check will be carried out by the workshop supervisor prior to the annual test.

• An internal audit has been produced and the transport manager will ensure this is kept up to date.

The response to the Vehicle Examiner suggested that the operator had a roller brake tester but that it did not intend to use this at every inspection but at every 12 weeks. I referred to the operator’s adverse history and the similarity of recent findings. The operator proposed further toolbox talks (as it did at Public Inquiry in 2019). I also noted the apparent decision not to adopt the best practice described in the Guide to Maintaining Roadworthiness and the recent DVSA brake test guidance dating from February 2022. I was therefore concerned as to future compliance and decided to review at a Preliminary Hearing with the Transport Managers to attend. Mr Yates appeared to be aware of that starting point and described the response as a mistake. I found it to be indicative of the confused reporting lines, which have been changed during restructuring.

I noted that the operator continues to review the Operator Compliance Risk Score maintained by DVSA. I was provided with a copy of the operator’s process for managing driver infringements (version 001), a printout of infringements for the period of October 2021 to November 2022 (nearly 20 pages) but only 2 examples of infringement reports which have been signed by drivers (counter signed by Mr Yates). The operator also provided a summary of sample driver disciplinary documentation for Drivers Ord, Cox, Doucet, Krotchwill, and Sluggett, for incidents of accident/damage, failure to follow processes, failure in walk-round, failure to report a driver detectable defect, failure to use the weighbridge. Only two of those employees remain.

An emailed letter dated 27 January 2023 from Mr Baker suggested that the operator is committed to improving compliance. I have since seen correspondence retaining the services of AS Miles Consulting Ltd. An initial meeting was due to take place on 19 January 2023. I was also provided with an invoice for attendance at training to be delivered by MDR Training. I was provided with the following personnel details:

• Dominic Oates Fleet Manager responsible for the Fleet Maintenance department

• CPC Management course 21 March 2023, exam on 4 April 2023

• Ben Baker Technician maintenance and annual test

• CPC Management course 21 March 2023, exam on 4 April 2023

• Russell Robinson General Manager (Ops) day-to-day responsibility for Fleet Department

• Operator Licence Awareness Training on 13 March 2023

• Mike Fentem Financial Director

• Operator Licence Awareness Training on 13 March 2023

• Stuart Drylie Technician

• Operator Licence Awareness Training on 13 March 2023

• Kevin King Materials Recovery Facilities Operations Manager

• Operator Licence Awareness Training on 13 March 2023

• Andrew Yates Fleet and Compliance Manager, second Transport Manager

• Attended a two-day Operator Licensing Refresher course with S-G Transport Training & Logistics Ltd on 10 February 2022 (but see above)

Those commitments mirrored previous written representations describing recent personal appointments: Michael Fentem as Finance Director in February 2000. Richard Jeffrey joined as General Manager in early 2021 with considerable industry knowledge. This support was intended to allow Mr. Baker to focus on the operational side of the business. Mr. Baker described good progress being made during 2020 despite difficult financial circumstances. He referred to the issues with the annual test pass rate which developed during the second half of 2021. This apparently coincided with the resignation of a night mechanic, Phil Scholar, in August 2021. It proved difficult to source a replacement. It was this experience which led the operator to utilise the services of an external maintenance contractor, M N Commercials, in October 2021 Mr. Baker referred to the increased workload arising from the Covid restrictions which ended in early 2022.

In November 2021 Russell Robinson joined as general manager for operations and logistics. I was referred to his CV. The four senior managers make up the executive management team which was described as embedded within the business and capable of providing strategic leadership. In March 2020, Andrew Yates joined the business and shortly after it became Fleet Manager. Mr Yates became the Compliance Manager in May 2022 with a Service Delivery Manager being appointed for fleet and service teams. A recruitment campaign commenced for a dedicated Fleet Manager in August 2022. This eventually led to the appointment of Dominic Oates as Fleet Manager in December 2022. Mr. Baker indicates that a recruitment process is also commenced for two experienced Transport Managers. He intends to recruit an additional Fleet Workshop Technician in February 2023 this will allow him to remove to step down from the position of Transport Manager in March 2023. He then plans to have twice yearly audits and for Mr Oates to complete his CPC training in April 2023.

A dip sampling of the maintenance records at the Preliminary Hearing suggested that many of the aspirations set out in the representations had yet to be realised. Those records disclosed the following:

R13 BWS

• 2 December 2022 – inspection with road test of brakes, despite a brake warning light on the dash and rear brake pads low (again). It also records cab wear, lamp wires insecure, sideguard cap missing, but no equivalent driver report.

• 10 November 2022 – inspection with no discernible brake check despite the reference to rear brake pads. It also records a cracked lens, but no equivalent driver report.

• 9 September 2022 – inspection with roller brake test: 50%, 21%, 21% but fitter passed the vehicle. It also records damage to lens, oil leak and air leak from the rear axle, but no equivalent driver report.

• 26 July 2022 – inspection with roller brake test: 48%, 19%, 18% but the fitter passed the vehicle. It also records an oil leak etc, but no equivalent driver report.

• 14 June 2022 – inspection with decelorometer brake test: 42%, 13% after brake callipers were replaced with low brake efforts. It also records defective reversing lights, tyres, wheel nuts, licence plate, and oil, but no equivalent driver report.

• 3 May 2022 – inspection with roller brake test: 49%, 20%, 21% but the fitter passed the vehicle after low brake pad warning. It also records cut to tyre wing flap missing, wheel nuts not checked and blub replaced, but no equivalent driver report.

KX11 FDY

• 17 November 2022 – inspection (10+ weeks before the hearing and 12+ weeks since the previous inspection) with no discernible brake test. It also records warning on the dash, chipped windscreen, insecure wing, mirror hanging off, marker light inoperative and oil, but no equivalent driver report.

• 20 August 2022 – inspection (12+ weeks since the previous inspection) with roller brake test, but: 40%, 23%, 13%. It also records defective side marker, rear wings in poor condition (again) and an air leak, but no equivalent driver report.

• 23 May 2022 – inspection (7+ weeks since the previous inspection) with roller brake test, but: 30%, 12%, 8%. It also records damage to the rear wings (again) and defective shock absorbers, but no equivalent driver report.

• 4 April 2022 – inspection with roller brake test, but: 27%, 7%, 5% and imbalances of up to 55%, and the fitter passed the vehicle. It also records a defective bumper, warning on the dash, wings hanging off, oil leak etc, but no equivalent driver report.

• 21 February 2022 – inspection with decelorometer test: 48%, 22%. It also records wing is bent, cracked lens, cracked exhaust, cab mount warning on the dash and oil leak, but no equivalent driver report.

• 19 January 2022 – inspection with roller brake test, but: 27%, 7%, 4% and no printout. It also records a defective driver’s seat. The last defect report was dated 10 January 2022.

I was told that Mr Yates would attend at 5 am to monitor the driver walk rounds and then stations a fitter at the gate, but none of these checks were recorded. I was told that drivers attended a session in the workshop to physically demonstrate best practice. The efforts taken to date of the Preliminary Hearing were not reflected in improvements to the driver defect reporting system. Mr Baker repeatedly referred to a lack of accountability, but it is the job of the Transport Manager(s) to ensure effective and continuous management of the transport operations. Responsibility for taking vehicles off-road should not have been ascribed to administrative assistance. Issues with maintenance could not simply be blamed on an external contractor. The Transport Managers should have been aware of the deficiencies in brake testing, inspection intervals and driver defect reporting and have already taken action to address the shortcomings. I was told that Mr Oates would manage the maintenance as Fleet Manager. A separate Service Delivery Manager will then manage the drivers. They will report to the Operations Manager, Mr Robinson. Regardless of those arrangements, the Transport Manager(s) must meet the statutory duty and ensure compliance. It became abundantly clear that Mr Baker has too many responsibilities to carry on with those duties. I allowed him to step down upon receipt of an undertaking to appoint a second Transport Manager within a four-month period. However, he is still responsible for the performance to date and may yet be the subject of regulatory action.

On that performance, I judged that a Public Inquiry was necessary. The operator was warned that I may call it and the two CPC holder to a hearing. I asked the Office of the Traffic Commissioner to fix a date for after the Period of Grace, to allow opportunity to make further representations and to show that the operator was then fully complying. I indicated that I was willing to consider a report from A S Miles, but a fully independent audit might still be required. On 6 March 2023, Andrew Yates was removed as a transport manager. The operator provided a letter on 16 March 2023 which confirmed that members of staff that had completed Operator Licence Awareness Training and setting out the responsibilities of staff within the organisation. It also suggested that external Transport Manager support was engaged, and that the operator was carrying out interviews for a second Transport Manager. A further letter was received on 27 March 2023, and there was a subsequent application and CPC certificates were received referring to Vicki Bunting. Ms Bunting holds an OCR certificate issued in 2019 and acted as the Transport Manager for National CSS Limited (OC2008480) from 2021 until 9 April 2023.

On 19 June 2023 I received correspondence sent on behalf of Ms Newton suggesting that the operator had not been entirely clear about the outcome of the Preliminary Hearing. I refer to the problems that the operator has encountered in obtaining evidence by which I can be satisfied as to financial standing, the operator having assumed the onus upon grant of the Period of Grace.

The findings made at the Preliminary Hearing were accepted. Representations confirm the continued involvement of AS Miles Consulting Ltd but suggest a lack of availability leading the operator to seek assistance from Total Compliance, which conducted a two-day visit and authored an audit report on 6 April 2023. In response to these proceedings, AS Miles conducted a further audit, which suggested further changes, which the operator is working to implement. The operator was aware of the need for change and Mr Miles was said to have spent a significant period with the business. He has advised on the general management of systems as well as the level of compliance. Russell Robinson was said to be qualified in the assessment methods used by AS Miles, so the new processes will be adopted by any new personnel.

Ms Newton referred to the initial hearing before my colleague, Mr Dorrington, in 2019. Shortcomings were said to have been addressed but it was acknowledged the operator dropped below the licence standards when faced with the challenges of the pandemic. The operator outsourced maintenance services to NM Commercials but was unhappy at that level of service. Maintenance was brought back in house by Autumn 2022 with the commitment made to employ another mechanic. The proposed CPC holders are working with the maintenance team to ensure that standards are attained and maintained. Vehicles and trailers are to undergo a laden Roller Brake Test at every inspection. Tyres are also managed in house with retorques recorded by the workshop and a third torque the following day by the driver. A fortnightly tyre fleet check is being carried out.

Mr Miles have been involved to support those improvements and Ms Newton referred to the recent annual test pass rate. There is oversight through the Senior Management Team, which includes the CPC holders and lead technician, to the Executive Management Team, for instance, the recent annual test failure on 30 January 2023 relating to the ad blue tank. This was a technical matter, which had not been raised at previous tests. The Prohibition Notice regarding P19 BWS on 9 March 2023 related to movement of a sideguard, which was attributed to the state of road surface. The Prohibition on 22 February 2023 related to a broken road spring, at the same site. Drivers have been advised to conduct additional checks on leaving.

The Transport Manager position had not proceeded as hoped. Recruitment to replace Mr Baker has been ongoing since November 2021. As noted, Mr Yates resigned earlier in the year, so the exercise was extended. A member of staff was identified as a possible candidate but did not obtain the qualification. Another potential candidate did not live up to those expectations. Mr Baker has continued in the role, despite a lack of capacity, but with the assistance of other managers. I was referred to the involvement of two full-time employees: Ben Baker, who apparently takes a lead within the workshop, but his qualification has yet to be confirmed. Russel Robinson is also due to undertake the exams later in the year.

Vicki Brunning is qualified, and that application was lodged on 25 April 2023. She was described as an experienced Transport Manager. It was suggested that she also oversaw the Workshop, supported by a lead mechanic and an experienced administrative assistant, and will also primarily deal with the maintenance compliance. Carl Lake had also been nominated by the date of the Public Inquiry. It was suggested that he might oversee driver compliance ‘as part of the Service Delivery Team’ with the support of another manager. I was told that Mr Lake has experience as a planner and driver manager for a large waste transport organisation. He has less experience in management, but this will form part of his training plan and will work closely with Russel Robinson, and a newly appointed HR Manager. The Transport Managers are to work together at the Boston Road Operating Centre, with monthly meetings with the Senior Management Team. That information is then fed to the monthly Executive Team Meeting. I had opportunity to hear from both CPC holders in evidence, to ask them questions and to assess their apparently approach.

I was referred to a slightly updated structure to that described at the Preliminary Hearing. The purpose of the restructure was to allow the Directors capacity to manage the business and oversee compliance. I noted a change in technical support, but also the challenges being faced (see below).

I was told that drivers had received additional toolbox talks on defect reporting and associated operating procedures. The operator employs a digital app, which is linked to the planning system. A driver can only access the daily work sheet once the check is completed. Vicki Brunning is acting on advice to move to a system which aligns with the Truckfile digital system. However, whilst the CPC holders have authority to discipline drivers, gate checks were being conducted by various team members including Mr Baker with unannounced second checks and supervised checks.

Mr Lake was said to be responsible for planning but assisted by a Lewis Baker. As suggested above, instructions are via the app and planned to comply with drivers’ hours limits. Drivers based as the other Operating Centres, return to Boston Road during the week to refuel, when they have contact with the CPC holders. Downloads are made almost daily and in person. The operator uses Smart Analysis to analyse tachograph data. Drivers have received their CPC training through the operator, but additional training will be provided by the new CPC holders under guidance from AS Miles, for instance a recent workshop relating to drivers’ hours, concentrating on WTD breaches.

My latest dip sampling of records disclosed the following:

T9 BWS

• 6 April 2023 – inspection with no apparent brake test with brake pads low and only signed off as roadworthy on 8 May 2023. It also records defective bulb, pipe leaking, fuel cap missing.

• 25 February 2023 – inspection with no apparent brake test and only signed off as roadworthy on 28 February 2023. It also records that screen wash is required.

T25 BWS

• 14 April 2023 – inspection with a road test despite axle 3 pads being low. It also records a broken panel, front light, suspension, and fuel defects, as well as bushes (again).

• 27 February 2023 – inspection with a road test, having only been signed-off from the previous inspection on 9 February 2023. It also records defective deflector, mirrors, step, insecure indicator and also bushes.

• 20 January 2023 – inspection with a road test despite low brake pads and having only been signed-off on 9 January 2023. It also records a defective driver’s door lock.

P33 BWS

• 8 May 2023 – inspection with roller brake test, but: 40%, 20%, 20%, under laden with imbalances of 21% on axle 1 and 25% on axle 3. It also records EML, defective offside front fog light, driver advised on coolant, bulging tyre. Last driver defect report: 3 April 2023, signed off on 25 April 2023 – oil cooler replaced, bulb replaced, EML repaired.

• 27 March 2023 – inspection with ‘n/a’ for a brake test, despite end axle 2 pads and axle 3 camber being replaced It also records a defective driver’s seat, air leak within the cab, engine malfunction illuminated, dim offside indicator lamp, flexi exhaust hose behind cab broken, offside front tyre catching on the wing, nearside rear lens holed, offside rear lens insecure, nearside marker light holed, number plate light mounted incorrectly, rear number plate damaged, exhaust brake pipe split. No discernible driver defect report. Odometer: 735861.

• 27 February 2023 – Vehicle inspection form shows off road – no odometer reading.

• 16 January 2023 – Vehicle inspection form shows off road – no odometer reading.

• 9 September 2022 – odometer: 731827.

The trailer records, produced on the afternoon of the hearing were of equal concern. By way of example, there was no printout for the brake test of C349782 on 5 June 2023, with the inspection record referring to results, as follows: 16% and 10%, identifying insufficient load with a tyre cut to the cords. On 24 April, the test apparently recorded 13%, 13%, 8%. I was unable to identify when the two rear air tanks were changed. The inspection on 6 March 2023 suggested that brakes were ‘n/a’ but identified the rear air tanks. It also recorded several driver detectable defects.

34 The attendance at Operator Licence Awareness Training offered some mitigation, but this had yet to deliver results. It was disappointing to note that, whilst there had been some progress in the establishment of reporting lines and the freeing up of Mr Barker’s time, there had not been improvements in maintenance and driver defect reporting since the previous hearing. I was told that relations with Mr Yates had deteriorated following those findings. His departure had significantly delayed the changes which Mr Baker hoped to implement. The new CPC holders only took up appointments in May. There remain some cultural issues to be addressed, but Mr Miles suggested that compliance would be achieved within 6 months. I was satisfied that the CPC holders have the required approach to deliver the statutory duty. They described the regular meetings and liaison. I also heard how recent instructions had been given and by reference to the current DVSA guidance, for instance on brake testing. I was assured that disciplinary processes are in place. I suggested that recent records (above) suggested that it may have to be employed.

6. Determination

Based on the evidence summarised above, I was satisfied that I should record adverse findings under the following sections: 26 (1)(b) - condition to notify changes including management, maintenance and the ability of the Transport Managers to meet Schedule 3, 26 (1)(c)(iii) – Prohibitions (although I noted the investigation and response), 26(1)(e) - statements of intent relating to inspection intervals and compliance with conditions, 26(1)(f) - undertakings (vehicles to be fit and serviceable, to employ effective driver defect reporting, full maintenance records), which continue to be an issue, 26(1)(h) - material change in the position of the Transport Managers and financial standing. I made an adverse finding under section 27(1)(a) so as to allow a final Period of Grace of 4 months to provide acceptable evidence to show financial standing. The operator’s bank should note the requirements of this tribunal.

I was asked to accept Mr Baker’s resignation, without a disqualification from relying on his Certificate of Professional Competence. His repute is tarnished by the above findings. Mr Yates departed but I was to consider his performance at this hearing. I have not acted in respect of his repute beyond finding it to be tarnished, but any future application by him will have to be referred to a Traffic Commissioner for scrutiny. That left the operator without a Transport Manager, but I then allowed the appointment of Ms Bunting and Mr Lake. They were reminded of their joint responsibility and of paragraph 60 of the Senior Traffic Commissioner’s Statutory Document No. 3 on Transport Managers.

Directors are required to oversee compliance and to establish key performance indicators, whilst the named Transport Managers have statutory responsibility for continuous and effective management of compliant transport operations, reporting to the Directors. The adverse history was acknowledged in the representations. It was suggested that I could trust the operator to take appropriate action, based on the efforts made since 2019. My question was how quickly, given the above findings.

This was not the first hearing. I noted the new Transport Managers with the germ of new processes and improved lines of reporting I was referred to the long-standing involvement of AS Miles and the actions of the new management team to implement the consultant’s proposals. Those have yet to be fully realised. I was asked to accept that the restructure has not moved as quickly as hoped but that reporting lines and accountability are already evident. Mr Baker told me that he had engaged A S Miles for the long-term. He gave me an undertaking that the consultants would be retained for at least two years and to supply with a copy of an audit within 6 months of the date of this Public Inquiry. Noting the issues which arose when changing suppliers, which had arisen since the last hearing, I exceptionally allowed this undertaking but on the proviso that the auditor is a different person to that advising the operator. Based on the recent improvements, I considered that the operator should be able to demonstrate compliance. However, given the number of outstanding actions I also concluded the need for deterrent action, so that the operator is clear that this situation cannot continue and that other operators would understand that licence lending will not be tolerated. This is as per the Upper Tribunal in 2019/025 John Stuart Strachan t/a Strachan Haulage and more recently in 2022/1227 Lineage UK Transport Ltd. The operator’s repute is heavily tarnished by these circumstances.

I was provided with useful representations on the potential impact of regulatory intervention. This is a specialist operation, and the operator was anxious to retain the driving workforce; many have been employed for over 5 years. The operator could not outsource the work. I was told that suspension would risk a similar level of job losses as revocation and impact on Mr Baker and investors. I was not addressed on any specific period, but that a loss of income would cause major disruption to the financing and a backlog at the waste centres. Similar claims were made in respect of curtailment. Reference was made to customers, including schools, hospitals, and local authorities, with approximately 20,000 collections per week. [REDACTED]. It was suggested that a week of suspension or a month of significant curtailment would have a ‘potentially catastrophic impact’. There was no real back-up, due to the nature of the operations.

I determined that the licence be curtailed to 52 vehicles from 23:45 tonight. As was suggested to me in evidence: it is all or nothing. The operator should consider this to be a final chance to achieve compliance.

R Turfitt

Traffic Commissioner

21 June 2023