Decision

Decision for East Kent Recycling Limited (OK1121280)

Published 1 September 2023

0.1 In the South Eastern & Metropolitan Traffic Area

1. Traffic Commissioner’s Written Confirmation of Oral Decision And Written Summary of Reasons.

1.1 East Kent Recycling Limited (OK1121280)

2. Reasons

East Kent Recycling Limited appeared before me at a public inquiry on 18 January 2022 and my oral decision and reasons were confirmed by letter dated 19 January 2022. The clear warnings in that decision are the starting point for today. By February 2023, DVSA found improved maintenance systems, but it took the Vehicle Examiner considerable time to reach this conclusion because the records sent were disorganised and confusing. Mr Campion failed to check what was being sent and how. Mr Campion accepts that he relied too much on Mr Parsons, whilst at the same time giving Mr Parsons too much work to do – the same situation as January 2022. The Vehicle Examiner noted that there remained a few areas for improvement, but the biggest concern was the Operator’s persistence in stacking 2 loaded skips on its authorised vehicles. As at the date of this decision, that practice still has not ceased.

Mr Campion admitted today that he understood from January 2022 the DVSA guidance that an Operator must not stack loaded skips as this creates potentially significant stability issues. He understood that it is only acceptable if the load security methodology is approved by an enforcement authority. He understood the clear expectation on him at the end of the January 2022 public inquiry was for the practice to cease until such time as dynamic testing evidence was available and satisfactory to DVSA (which required written confirmation). Mr Campion understood that expectation because in February 2022 Mr Campion asked me to permit the ongoing doubling up pending the TRL report due to commercial pressures and then sent me a TRL static testing report. My office responded to remind Mr Campion to go to DVSA not me, in line with the expectation and guidance.

To date, Mr Campion has only obtained a static testing report, which DVSA will only give limited evidential value – entirely anticipated and no further forward than January 2022. Whilst the load security code of practice and guidance was updated in 2023, the approach to stacked loaded skips has not changed. Static testing does not recreate the very real challenges of load security on the highway and on sites. The dynamic requirement is just that – the use of stacked loaded skips tested dynamically around a test track. Even then it is difficult to undertake a representative test. Loads in skips are unpredictable, likely to move due to voids in the loads and often loaded by individuals with no regard to what happens once the skip is removed. Skips loaded with rubble behave differently to mixed loads etc. Mr Campion refers to commercial pressures so he may wish to consider a suitable draw bar trailer for the second skip as an alternative.

I came very close to revoking this Licence. TCs will revoke a Licence based on load security issues, even if other areas improve. This Operator has knowingly engaged in unsafe practices. It is only because the undertaking has been offered for an immediate cessation of double stacking loaded skips that I have stepped back. However, to mark my significant disquiet I have curtailed the Licence for a period, to a point where I am told it will impact operationally (as opposed to removing any margin).

Although this is not a formal post inquiry written decision, I have arranged for it to be published on the TC webpages and wider. It is only fair that competitors of East Kent Recycling Limited are reminded that the TCs role underpins road safety and fair competition to maintain the level playing field for the benefit of all Operators. Any operators double stacking loaded skips should read this decision carefully, with informed legal or similar assistance if required. Operators, transport managers and drivers have deemed knowledge of the advice and guidance in the public domain, as per 2012/030 MGM Haulage & Recycling Limited. There will be no room hearing for them to say “I didn’t know” if found to be engaged in unsafe loading practices.

2.1 Decision confirmed for the purposes of publication:

The variation application to increase the vehicle and trailer authorisation is refused.

Pursuant to adverse findings under section 26 (1)(c)(iii), (ca), (e), (f) of the Goods Vehicles (Licensing Of Operators) Act 1995, Licence OK1121280 is curtailed to 20 vehicles and 12 trailers with effect from 23:45 on Saturday 16 September 2023 until 23:45 on Sunday 24 September 2023.

During the period of curtailment, the vehicles removed from the licence must not be used or specified on any other licence in Great Britain, as provided for by section 26(6) of the 1995 Act. The vehicles to be removed must be listed in writing to my office by no later than 13:00 on 12 September 2023.

Undertaking 1: the operator undertakes to immediately cease the double stacking of loaded skips until such time as I agree to vary or remove the undertaking.

Undertaking 2: Mr Campion will do a further operator licence awareness course by no later than Thursday 12 October 2023.

Undertaking 3: Mr Robert Wilcox (nominated Responsible Person for the Licence) – by 12 October 2023 will either:

i) attend in person a two-day transport manager CPC refresher course; or

ii) participate in a virtual online two-day transport manager CPC refresher course.

Courses must be run by one of the following bodies:

a. a trade association (Logistics UK/RHA/BAR/CPT);

b. a professional body (IoTA/CILT/SOE/IRTE);

c. an exam centre approved by an accredited body to offer the transport manager CPC qualification in specify goods or passenger transport, or

d. a firm of solicitors (or their associated training organisation) with significant experience with road transport regulatory and compliance issues (defined as having represented road transport operators and/or transport managers in at least 20 public inquiries over the past two years).

Virtual online courses must satisfy the criteria for such courses established by the traffic commissioners. Whether attending in person or participating in an online course, proof of attendance must be submitted by e-mail to the Office of the Traffic Commissioner, Eastbourne within seven days of completing the course.

MISS SARAH BELL

Written confirmation: 17 August 2023