Decision

Decision for Fenland Fresh Logistics Ltd

Published 28 May 2021

0.1 IN THE EASTERN TRAFFIC AREA

0.2 FENLAND FRESH LOGISTICS LTD – OF2031939

AND

0.3 DANIEL BURNE – TRANSPORT MANANGER

1. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

2. Background

Fenland Fresh Logistics Ltd holds a Standard National Goods Vehicle Operator’s Licence authorising 4 vehicles and 4 trailers. The Directors are David Burne and Mel Gregory. Mr Burne is also the Transport Manager. An application to nominate an additional Transport Manager, Katarzyna Fudali, was lodged on 16 March 2021.

At the first hearing there was one Operating Centre at Casp Holdings Ltd, Stephenson Avenue, Spalding PE11 3SW. There were three declared contractors showing on the licensing record: WA Burdall, Mercedes Benz UK Ltd, and South Lines Commercials Ltd, undertaking Preventative Maintenance Inspections of vehicles and trailers at 8 and 12 weekly intervals, respectively.

The release of Mercedes vehicles by Dawsons Truck and Trailer was dependant on obtaining an Operator’s Licence. They were specified but did not commence operations until locked in to the operator. The original application was received on 21 March 2020 but did not include any supporting documentation. OTC Licensing wrote on 23 March 2020 requesting the same. A chasing letter was sent on 7 April 2020. On 9 April 2020, the operator supplied some but not all the required documentation, so OTC Licensing wrote again on 28 April 2020. The licence was granted from 9 June 2020.

The variation application seeks to increase authority to 10 vehicles and 10 trailers. The application to add an Operating Centre at Ashley Industrial Estate, Peterborough PE7, proceeded but for the reasons set out below, the increase in authority is still outstanding.

Written representations refer to another application for a further 4 vehicles, to allow the operator to diversify from its single customer and carry on in the dry goods sector. Reference is made to an interim licence, but that matter is not before me today. Information received from the licensing team suggests that the application is incomplete and refers to the wording of the advert. This was communicated by letter of 22 March 2021.

3. Hearing

The Public Inquiry was listed for 29 March 2021 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator appeared by video link and was present in the form of the Directors David Burne (also Transport Manager) and Mel Gregory, accompanied by Katarzyna Fudali (proposed Transport Manager) and represented by Murray Oliver of Oliver Legal, solicitors. The hearing went part-heard to allow the operator opportunity to consider its contractual arrangements with its sole customer, through which it has entered new maintenance arrangements, and which is also responsible for the maintenance of trailers, which will be operated under this licence. I allowed 14 days to provide an update to the OTC before relisting. However, representations were not received until 15 April 2021. The case was relisted for 5 May 2021 when the same attendees appeared by video link.

4. Issues

The seriousness of the operator’s position was explained in correspondence. In response dated 22 October 2020, the operator’s then legal representatives requested a Public Inquiry. Mr Burne was called separately in his position as Transport Manager. The hearing was called for me to consider whether there were grounds for me to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(b) – failure to notify matters affecting mandatory requirements, Mr Oliver queries which matter is covered by section 22(2), but those are referred to below. There is also the general requirement described in section 22(1).

• 26(1)(e) – failure to meet statement of intent relating to the maximum number of vehicles to be operated.

• 26(1)(f) – undertakings (drivers’ hours and tachographs)

• 26(1)(h) – material change:

• 27(1)(a) – loss of repute, financial standing, and professional competence by reference to 27(1)(b) Transport Manager repute and Article 4

• 28 – disqualification

The hearing was also called to afford the operator opportunity to satisfy me that the statutory criteria are met so that I might grant its variation application and specifically by reference to:

• 13A(2) – good repute

• 13A(2)(c) - financial standing,

• 13A(2)(d) – professional competence

• 13C(2) – satisfactory arrangements for complying with the laws on drivers’ hours.

The previous legal representatives withdrew in December 2020. The operator was directed to lodge evidence in support by 8 March and no later than 15 March 2021. Attempts to email the operator at the declared address proved to be undeliverable. I was subsequently notified of Mr Oliver’s interest and received a bundle of documents in addition to three months of statements for a current account, but only a screenshot for the business saver account. Mr Oliver was notified of the need to produce more and admissible evidence.

5. Summary of Evidence

Vehicle FY63 OHG was stopped on 11 August 2020. Traffic Examiner, Susan Lee (page 72) spoke to the driver, Trudi Lester. She indicated that she was employed by this operator. The vehicle was not displaying an operator’s licence disc. It was found that FY63 OHG was not specified on the licence. Driver Lester informed the Examiner that she had been instructed to put the disc from FY63 OHG into another vehicle by a George Mawbey, who was described as the manager of Fenland Fresh. He indicated that he would be down with a new disc in a few days. Ms Lee then telephoned Mr Mawbey, who stated that the vehicle was on hire for 4 weeks from Truckrent. The driver was apparently permitted to listen to the call on a speaker. Ms Lester then advised the examiner that she had been driving the vehicle for 6 weeks, which was corroborated by the driver card data. She also claimed that another vehicle, FY63 JXV, had been stopped on 3 July 2020 and was still being operated by the operator, as of 11 August 2020. Ms Lester also indicated that the owners of the Operating Centre had spoken to Mr Mawbey as the operator was parking more vehicles than was permitted. Four of the drivers had apparently been asked if they would operate out of St Ives but Ms Lester said she had refused due to 40 miles distance. Traffic Examiner, James Fordham commenced his inquiries on 18 September 2020 (page 75). He sought details of vehicle hires from Truckrent Ltd. The emailed response dated 29 September 2020 referred to the following: * FY63 OHG – hired from 24 June 2020 to 11 August 2020, 49 days but never specified.

• FY63 JXV – hired from 24 June 2020 to 23 July 2020, when the vehicle broke down and replaced with FX64OAG, 30 days and never specified,

• FY64OAG was then rehired to them from 24th June 2020 to 12th August 2020.19 days,

• KV13 ZXF – hired from 27th July 2020 to 12th August 2020, 47 days and never specified.

The vehicle list (page 6) shows that YP15 HNE and YP15 HPK were specified on 29 July 2020, YT15 FKK had been specified on 15 July 2020. Mr Fordham then sought tachograph data and details of drivers employed by the company or via agency from 1 June - 30 September 2020. Further data was requested on 12 October 2020. Mr Fordham confirmed the following: In addition to those vehicles which were specified on the licence, the following Vehicle Units were locked in by the operator: * FY63 OHG – on 24 June 2020,

• FY63 JXV – 24June 2020,

• FX64 OAG – 8 August 2020

• KV13 ZXF – 30 June 2020,

An analysis of tachograph data confirmed the following operations: * 20/07/20 – YT15FKX, YT15FKK, FY63OHG, FY63JXV and KV13ZXF = 5 vehicles in use (authority for 4).

• 21/07/20 – 22/07/20 – YT15FKX, YT15FKK, FY63OHG, FY63JXV, KV13ZXF and YP15HPK = 6 vehicles in use.

• 23/07/20 – 26/07/20 – YT15FKX, YT15FKK, FY63OHG, FY63JXV, KV13ZXF, YP15HPK and FX64OAG = 7 vehicles in use.

• 27/07/20 – 31/07/20 - YT15FKX, YT15FKK, FY63OHG, FY63JXV, KV13ZXF, YP15HPK, YP15HNE and FX64OAG = 8 vehicles in use.

• 01/08/2020 – YP15HNE, YT15FKX, YT15FKK, FY63OHG, FY63JXV and KV13ZXF = 6 vehicles in use.

• 3/08/20 – 12/08/20 - YT15FKX, YT15FKK, FY63OHG, FY63JXV, KV13ZXF, YP15HPK and YP15HNE = 7 vehicles in use.

• 13/08/20 – YP15HPK, YP15HNE, YT15FKX, YT15FKK and KV13ZXF = 5 vehicles in use).

DVSA sought to conduct an interview under caution. The previous solicitors responded on behalf of the operator on 26 October 2020 (page 96). The response did not dispute the operator operated beyond its authority. It referred to the application made in March 2020, which was delayed by the pandemic. The response indicates that the work which the operator had planned to undertake had also been affected. It then refers to an application made on 2 July 2020 to increase authority to 10 vehicles and 10 trailers. It claimed that the delay has led to a significant loss of work. Given the circumstances of the stop, approximately 5 weeks after that application was made, this can have been no surprise to the operator. I also note the explanation in the letter from OTC dated 22 October 2020 (page 113). Mr Oliver did not seek to pursue that criticism. Mr Oliver indicates that the Directors have negotiated a new contract with Amazon to operate 10 vehicles. The contract apparently requires 10 vehicles in operation. During the hearing, I heard that the contract was with Amazon EU and governed by the laws of Luxembourg. It dates from September/October 2020 and requires an audit within the first 45 days and for the operator to grow to 10 vehicles and 10 trailers as part of the Line-Haul programme. I remain unclear as to why a contract would be awarded to an operator with a lower authority than the 10 vehicles and 10 trailers required by the customer. No checks were carried out by that customer, which would confirm the likelihood of me granting that increase.

The earlier written representations from Messrs Woodfines claimed that there was no deliberate unlawful operation but suggests that the Directors and Transport Manager did not exercise the level of control expected of them. They were said to be significantly distracted by the operating conditions and hampered by a lack of access to office facilities. Those solicitors refer to measures, now in place, to avoid a recurrence. However, the application to add a further Operating Centre was not made until 23 November 2020.

It was noted that the company employed a total of 38 drivers from June-September 2020 with only 4 being permanent and the rest from agency. I was told that the new Amazon contract requires drivers to be employed and under the control of the operator. Traffic Examiner Lee raises the valid observation that, if the operator were concentrating on its financial position, it should have been abundantly clear that there was income from 8 vehicles and the expense of hiring additional vehicles and additions to the temporary workforce. I was told in evidence that Mr Mawbey was permitted such a degree of autonomy that he was able to offer more vehicles for operation than the licence permitted. I was also told that he had engaged suppliers and circumvented the Directors to an extent that they were paying those debts unto, December 2020. This extended to the use of driver agencies. These issues emerged during the disciplinary interviews and subsequently, but the operator was unable to provide any other evidence for me to view. Ms Gregory told me that its insurance broker based in Newmarket had retrospectively suggested that because the operator had made an application to increase its authority, insurance cover would have extended to cover the unlawful operation. I doubt that. I do understand that the billing arrangements were such that the Directors would only latterly have had cause to question the operations, were Mr Burne not also the Transport Manager.

Written representations lodged by Mr Oliver admit that between 20 July 2020 and 12 August 2020 the operator exceeded the authority by up to 4 vehicles. He states that the unauthorised vehicles were recalled to the yard by the Directors, the day after the DVSA stop. I refer to the TE’s findings at paragraph 17 above. This is attributed to a failure in the oversight by Mr Mawbey but also a failure in the management expected of Mr Burne. The licensing record suggests that Mr Mawbey emailed the OTC on 14 September 2020 to communicate that he was no longer working for this operator, having left at the end of August 2020. Additional checks, requiring Director oversight, have now been implemented.

Mr Oliver usefully gave notice of the operator’s case that, having been granted authority, contracts to supply 4 vehicles on traction-only were cancelled within 3 days due to restructuring of the corporate customer. Mr Mawbey is said to have arranged at short notice for the operator to undertake subcontract work, amounting to a 24-day period. The representations contain admissions that there were 3 days when the operator gained a commercial advantage by using two vehicles without authority, another 4 days when three vehicles were used unlawfully and 12 days when four vehicles were unlawfully. I am asked to accept that ultimately this container work proved to be uncommercial. Up to 26 February 2021, the operator has been subcontracting to a haulier specialising in the transport of general dry goods.

As indicated above, Mr Oliver usefully lodged a bundle of documents in advance. That bundle included: maintenance documents for vehicles YT15 FKK, YT15 FKX, YT15 HPK, YT15 HNE, maintenance contracts, forward planner, a process document, Drivers’ Hours Management policy, missing mileage reports, photographs of the new Operating Centre, details of the proposed Transport Manager, an extract from Amazon Procedure Manual, emails with maintenance contractor, and a Driver Handbook (parts dating from the period of Mr Mawbey’s appointment). I was unable to locate any further driver defect report.

The Traffic Examiner, Ms Lee carried out an analysis of drivers’ hours evidence, lodged by the operator in advance of the hearing: Between 2 October 2020 and 20 January 2021 - 16 offences by agency Driver Adrian Radu (now removed), mainly WTD breaches but including 4 breaches of driver’s hours requirements arising from significantly shortened breaks; 6 offences by agency Driver Paul Tapalaga (now removed), including 4 breaches of driver’s hours requirements arising from shortened breaks; 2 offences by agency Driver Patricia Roche (now removed) with 1 driver’s hours offence when 18 minutes late to a break; 2 offences by agency Driver Aurel Ciobanu (now removed), both WTD, 1 WTD offence by agency Driver Damien Sebastian Glazer (now removed), 2 driver’s hours offences by agency Driver Wojiech Morzik (now employed) including where he exceeded the daily drive limit by 47 minutes; and two minor driver’s hours offences by agency Driver Florin Postolache (now employed). The Traffic Examiner also noted the number of occasions when vehicles had exceeded speeds of 60mph.

The written representations confirm that maintenance and inspections are the subject of a full repair and maintenance contract through MAN. There has been a deliberate decision to move away from Mercedes vehicles. The operator’s bundle contains an exchange of emails (pages 256 onwards) dating from early March 2021, suggesting a change of contractors. At the first hearing that change was yet to be notified. Mr Oliver’s representation state that the original fleet has recently been sold with 4 new MAN vehicles having been delivered which will be exclusively used on the Amazon work. Amazon has facilitated that lease purchase of new MAN articulated tractor units. I am told that the Directors recognise the need to interrogate and manage that relationship to ensure that the vehicles remain in a fit and serviceable condition at all times.

Following a dip sample of the vehicle records, I noted the following:

YT15 FKK –

• 17 February 2021, laden roller brake test completed and passed, chip in windscreen and wiper blades worn noted.

• 23 December 2020, unladen brake test and only two readings – 52% and 24%, noted windscreen damage and cab door.

• 31 October 2020, unladen brake test and only two readings – 65% and 37%.

YT15 HPK -

• 7 January 2021, laden roller brake test completed and passed on FWA, noted loose bumper.

• 13 November 2020, unladen roller brake test 46%, 17% and 18%, noted cab floor/steps, lamps, loose bumper, oil leaks.

There was no apparent explanation for the approach to brake testing, despite the earlier version of the Guide to Maintaining Roadworthiness dating back to November 2018. I did not continue further, as all specified vehicles were replaced with NX21 USB, NX21 USC, NX21 USD, and NX21 URO on 19 March 2021. I was concerned to hear from the operator that the R & M contract would not provide for regular laden brake testing. To the operator’s credit Mr Burne has agreed to pay extra. I could not understand why a contractor whose services were said to have been procured at preferential rates through Amazon and was said to be carrying out inspections in line with the Guide to Maintaining Roadworthiness, has not engaged laden brake tests. Section 5.3 of the guide provides:

As per the annual test, every safety inspection must assess the braking performance of the vehicle or trailer. It is strongly advised that a calibrated roller brake tester (RBT) is used at each safety inspection to measure individual brake performance and overall braking efficiencies for the vehicle or trailer to the annual test standards. However, it is also acceptable to use an approved and calibrated decelerometer to measure overall brake efficiency values for vehicles without trailers. In the case of trailers, an Electronic Braking Performance Monitoring System (EBPMS) may be used as a means to assess trailer-braking performance and provide a brake performance value while the vehicle is in service (for further details see EBPMS section). Brake testing should be undertaken with the vehicle or trailer in a laden condition in order to achieve the most meaningful results; however, due to basic design limitations or restriction caused by the type of cargo normally carried, this is sometimes not possible. Further guidance regarding the use of RBT’s can be found at this link: www.gov.uk/government/publications/the-heavy-vehicle-braketest-best-practice-guide

This led me to question how the operator ensured the safety of the trailers operated. At first there appeared to be some doubt as to whether Mr Burne thought that third party trailers formed part of the operation and were covered by the obligations of this operator’s licence. The Guide to Maintaining Roadworthiness expects traction operators to work with the trailer owners to ensure any trailers operated fall within the owner’s agreed SI frequency and that they are roadworthy. It is best practice for the trailer owner to provide evidence for the operator that first use checks and safety inspections have been undertaken and demonstrate there are no outstanding defects reported for the trailer. It goes on there must also be a robust system in place to ensure defects identified during the walkaround check, or develop during use, are recorded and rectified before the tractor/trailer combination is operated in an unroadworthy condition. I saw an example of the electronic defect reporting system having been used. The extent of trailer checks described by Mr Burne amounted to a facility where a driver might check with a yard supervisor when collecting a trailer. He was unable to tell how the brakes would be checked or how often.

I refer to the letter submitted by Mr Oliver dated 15 April 2021, it appears to admit that previous arrangements were not sufficient, in order to meet the requirements of the operator’s licence. Mr Oliver indicates that his client has fed back concerns arising from the first hearing and that Amazon has provided the attached response regarding the maintenance of trailers owned by that company. It prompts me to ask yet again, which entity is corresponding with this operator and which has the contractual obligation to comply with the attached document. Under the proposed processes, operators such as this one would apparently be “entitled to apply for a copy of the most recent PMI certificate and roller brake test reports” and there is also a telephone helpline to report defects found on the trailers during the driver walk round procedure; concerningly that is referred to as a “daily check”. I am assured that Amazon has recognised that a total of two roller brake tests per year on MAN vehicles is insufficient. I am told that there is now a commitment through Close Brothers Finance to carry out four laden roller brake tests per year at 12-week intervals. It is suggested, but far from clear, that a calibrated decelerometer may be used in the intervening period. Mr Oliver is unable to confirm whether that will be used in conjunction with brake temperature readings, to be recorded on the PMI sheet. However, I had already noted this operator’s commitment to paying for its own laden roller brake tests of the tractor units at every Preventative Maintenance Inspection.

I am unclear as to who has authored the answer sheet supplied. It does not apparently form part of the contractual arrangements and appears to have been supplied by a UK-based entity. I am unclear how it might be enforced. The fact sheet indicates that Amazon maintains all the UK trailers on a 10-week service interval, which is shorter that the 12 weeks declared by this operator. I note the reliance on in-house fleet management software which is integrated with TIP’s system for scheduled maintenance. I was told that the customer has declined to give the operator access to those records and apparently takes this approach to all the 30 GB operators engaged in this trunking work. This leaves the operator in the unenviable situation of having to compile its own spreadsheet from the limited information provided when it encounters individual trailers supplied through this customer. I was concerned as to the burden on the operator. There have been discussions with a transport consultant, Mr Lafferty about accessing publicly available data but Amazon’s approach appears to be short of the type of cooperation described by DVSA. I can only guess at this stage how other regulators might view that decision in the context of its wider safety duties.

The written representations refer to several urgent meetings with Amazon following the hearing. It was then identified that the third-party trailers pulled by the operator continue to be inspected at 10-week intervals involving a static brake check, but only one roller brake test per year, via TIP Trailer Services Ltd or its network of authorised vendors. Single trailers have been brake tested in a laden condition, but double deck trailers are unladen. That was changed to laden testing from 22 March 2021. The sheet refers to the average age of the trailers but not the relevant parts of DVSA published guidance. Amazon is said to be investigating a pilot of Electronic Brake Performance Monitoring System during 2021. In evidence I heard that this may be through May to July.

The representations referred to stickers which will be installed on all “Amazon UK trailers” so that drivers can refer to the relevant cycles. This type of recording has been used in GB supermarket work for some time. I have noted the example of the “Amazon Transportation Compliance sticker”, which records when a PMI, the annual test and a brake test are due. I am told that a copy of any relevant maintenance document for K trailers will be provided to Amazon partners upon request. Apparently, “Partners can raise a case with Front-line fleet operations team via the same channels that they currently use for any other Amazon query or incident”. This information will be used by the operator to populate its spreadsheet.

The fact sheet suggests that operators engaged by Amazon can access 2 different models of branded tractor units: MAN TG3 and Mercedes Benz Actros 5, leased through Close Brothers. I am told that there are repair and maintenance agreements in place as part of the agreement with Mercedes Benz having offered RBT at four times per year and MAN only twice per year. That will change to four times per year from this month, but this appears to include the annual test and, presumably, any preparation for test.

Mr Oliver suggests in writing that I should be encouraged by the changing policy regarding the laden and testing of trailers. He seeks to anticipate my concern at only two laden roller brake tests per year. I am asked to give weight to commitments to trial EBPMS, but, for obvious reasons, any weight will be limited, in the absence of concrete proposals. I can give credit for Amazon’s introduction of a tyre pressure warning system across its fleet of trailers. The operator has been given access to the system so that checks can be made on the tyre pressures of vehicles and trailers remotely. I am unclear whether this is an arrangement, which is offered to other operators and how this might be reflected in the contractual relationship going forward. It remains the case that the operator is still developing the system whereby it will have access to the maintenance paperwork for each of the trailers being operated under this licence. As recorded above, it is anticipated that the operator’s spreadsheet will, in time, record the due date for each inspection of the third-party trailers encountered to date. The operator will then be able to check the trailer fleet number, against the spreadsheet, to ensure that the operator is in possession of the required information to satisfy itself of the road worthiness of each of those trailers.

6. Determination

I refer to the statement made to obtain the licence, the number of vehicles clearly permitted by that licence, the relative dates of lodging the application in March 2020, only to be stopped in August 2020. I am unsure what point is being made in terms of the written representations. The powers under section 22 are not limited to subsection (2). Putting a gloss over section 22(1) does not reflect well on an operator seeking to persuade me that the Directors fully appreciate the seriousness of the unlawful operation of vehicles and its potential impact on repute and that of the Transport Manager. The grudging acceptance that the operator failed to analyse its drivers’ hours data even though it employed remote downloading systems, vehicle trackers and camera systems added to my concern. I noted the drivers’ hours management as described in the documents produced by Mr Oliver from pages 173 to 234 of the operator bundle. I was told that the operator has invested in technology to manage the daily driver defect checks, tracker systems and remote downloading of driver tachograph cards and vehicle units. I was referred to new employment contracts and a handbook. I gave credit for those actions, but I also noted the updated findings of the Traffic Examiner. Considerable emphasis was put on the single customer’s systems although the representations describe them as supplementing the direct management. That does highlight the need to ensure proper management, which was found to be lacking. I refer to the evidence above and have recorded adverse findings under the following sections of the legislation: 26(1)(b) – failure to notify matters affecting mandatory requirements and by reference to section 22(1); 26(1)(e) – failure to meet statement of intent relating to the maximum number of vehicles to be operated; 26(1)(f) – undertakings for compliance with drivers’ hours and tachographs requirements, and that vehicles and trailers will be operated in a fit and serviceable condition with complete maintenance records.

I then started to consider the question posed by the appellate tribunal in 2009/225 Priority Freight, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?

The written representations correctly anticipated my concern at the commercial advantage obtained by the operator in this case.

Mr Mawbey had been nominated to act as Transport Manager as part of the outstanding application to be determined at this hearing. The operator thought that he was qualified to do the job and he was described as well-rewarded. However, he was never actually authorised by my office to act as the Transport Manager. Nevertheless, day to day operations were delegated to him and in a short period of his employment he was permitted to work remotely with only weekly meetings, which failed to exercise effective oversight. It was left to him to obtain additional work whilst the Directors (including Mr Burne) were engaged in an acquisition. The representations suggest a level of recklessness in trusting Mr Mawbey to run the operations. The operator accepts that management control was ineffective and that there were no systems in place that prevented the unlawful operations. It is described as an isolated incident, but what it says about the Directors’ approach and Mr Burne’s approach is concerning.

The representations accept that the directors failed to exercise proper oversight. One of those Directors was also the Transport Manager from the date of grant. The representations suggest they were at arms-length from the transport operations, whilst the operator enjoyed the potential benefits of unlawful operation. I am asked to turn my face from the obvious, as well. I am told that lessons have been learnt and that the new Transport Manager will not be allowed to take such risks. Mr Oliver suggests that the DVSA intervention brought about “a moment of clarity” for the Operator. It was then that the Directors recognised that they needed to be closer to the Operating Centre. How Mr Burne ever thought he could meet the statutory duty remotely remains unclear to me. I compare this with the summary of duties set out in paragraph 54 of Statutory Document No. 3.

The test failure rate is at 100% but from 1 test. Limited weight can be placed on assertions that the operator “has always sought full repair and maintenance agreements for the vehicles operated” when it only commenced laden roller brake tests from November 2020. I do note the subsequent action to address this with the contractor, but that further illustrates the need for effective management of R & M arrangements. It is only since his attendance at the DVSA New Operator Seminar on 18 March 2021 that it has occurred to Mr Burne to cross-check the maintenance documentation, for instance checking PMIs for driver detectable defects. In the absence of this approach, I cannot see how Mr Burne thought he was exercising effective and continuous management of the transport operation.

I am asked to balance the negative elements against the management since. That cannot properly be categorised as proactive when it only resulted from DVSA intervention. I also refer to Ms Lee’s recent findings. I was assured that Mr Burne is fully involved on a day-to-day basis. I am referred to the new contracts and the employment of an additional CPC holder, Katarzyna Fudali. The presence of an effective Transport Manager can assist in future compliance. Her appointment was yet to be authorised and the level of involvement depends on whether the application is granted. I am willing to allow that appointment, subject to my decision below.

On my assessment of the Directors they now take responsibility for what occurred. There was a certain degree of panic at the loss of custom and relief at trying to keep the business going during the restrictions brought about by the pandemic. That does not excuse their failure to exercise oversight and in particular Mr Burne’s failure to meet the statutory duty on him as the Transport Manager. It is only in his recent actions that Mr Burne has been able to redeem his position. He should be in no doubt that his previous failure to exercise his statutory responsibilities as Transport Manager, have severely tarnished his repute, which he came perilously close to losing.

In writing, the operator put significant weight on the standards to be applied to it under its contract with Amazon. The extracts (pages 19 to 23) from the Amazon Procedure Manual prompted me to seek additional information (referred to above) but the section on vehicle maintenance is telling. It is all about the obligations on the operator for its tractor units. There is nothing regarding the maintenance regime for trailers to be operated under this licence. I do not understand why a trailer supplier continues to ignore the guidance issued by the DVSA. (That will need to be considered outside of this Public Inquiry.) Mr Burne has woken up to the challenges faced by the operator in its business relationship with Amazon. I have given credit for his efforts to identify checks, by which the operator can be satisfied as to the roadworthiness of the trailers being operated under its licence. I am safely aware that the position adopted by its customer may create a disproportionate burden on the operator. It understands that it must meet the same standards expected of any GB operator.

It is important not to conflate my consideration of regulatory breaches with the application, where the onus is on the applicant to satisfy me that the statutory criteria are met so that I can increase authority. However, in considering that application, I can give weight to the investment in a new operating centre. I have seen the photographs of the on-site management offices, which should assist in managing drivers. I am asked to give credit for a prompt response, but these issues should never have arisen and certainly not so soon after grant. The representations refer to the discipline and dismissal of the manager and the recognition of the directors’ responsibilities. I am referred to the recent nomination of another CPC holder. I am also referred to the investment in new vehicles. This appears to reflect the degree of influence exercised by the sole customer.

Mr Oliver accepts that the unlawful operation points to this case falling within the SEVERE category. However, he seeks to persuade me by reference to the Tribunal decision in 2013/082 Arnold Transport Ltd to suggest that I might consider a MODERATE starting point for regulatory action. He suggests that maximum credit be given where the operator has taken steps well in advance of the Public Inquiry.

The Arnold Transport case reminds us that the Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation. The decision also helpfully reminds operators that fitness to hold an operator’s licence is an essential element of good repute.

It remains the case that the operator has yet to implement arrangements with its customer by which it can be assured as to the regular maintenance of trailers to be operated, under this licence and by reference to brake performance testing. The documents presented from Amazon offer the potential for increased testing but are still far short of the formal guidance issued by the enforcement Agency. There is no explanation as to why it (whichever part of the Amazon group that might be) considers that those additional tests are not reasonably practicable. On that basis the application must fail under section 13C.

I am told that any reduction in authority for any period beyond single days would put the operator’s sole contract at risk. Indeed, the application itself reflects the arrangement with Amazon that the operator would eventually have 10 vehicles available. Where an operator chooses to enter a contract with a customer such as Amazon, which requires an increase of authority, it does so at its own risk. Threats of withdrawal if the increase is not granted, will carry very little weight before this tribunal. Parliament decides on the statutory regime and the standards which the regulator must apply. It is for the regulator to decide whether intervention is justified and then whether the operator has met the criteria for an increase in authority.

I am reminded of the Upper Tribunal’s decision in 2013/047 Dundee Plant Hire Ltd, which refers to tales of doom and gloom but distinguishes between interventions which allow the operation to continue (without the need to make a fresh application) and provide a chance for a new leaf to be turned over, as opposed to the finality of revocation. As Mr Oliver acknowledged, the operator may be forced to seek an alternative customer, but its whole operations, including access to its tractor units, are to a degree dictated by this one contract. However, as outlined by the Tribunal in 2019/025 John Stuart Strachan t/a Strachan Haulage: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. I take account of the impact of the refusal of the application but, as a matter of fairness to all other compliant operators, other deterrent action is required where there is a material impact. I take account that a penalty clause may be activated, at a cost of £9,000. The operator’s licence will be curtailed by one vehicle for a period of 7 days, commencing at 23:45 on 30 May 2021. The operator has until that date to nominate one of the vehicles specified, which will be the subject of a direction preventing its use, pursuant to section 26(6).

Richard Turfitt

Traffic COmmissioner

7/5/21