Decision

Decision for M.A.S.T Construction Limited (OM2055451 and OD2061311)

Published 1 September 2023

0.1 In the Scottish Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 M.A.S.T Construction Limited (OM2055451 and OD2061311)

2. Background

On 25 May 2022, a GV79 application was submitted by M.A.S.T. Construction Ltd OM2055451, requesting a restricted goods vehicle operator licence with authorisation for the use of 2 vehicles.

The applicant was called to public inquiry on 31 October 2022 (held by Microsoft Teams) as a result of allegations that they were operating unlawfully and the operator’s history of poor compliance in Northern Ireland. On assurances being provided by Mr Doherty, sole director of the operator company, and Mr Quigley who was to be employed in a transport manager role, I agreed to grant an interim licence for 1 vehicle. I directed that the application be held in abeyance until an audit was produced. The following undertakings were offered by Mr Doherty and added to the licence:

• The company will arrange for an independent audit to be carried out by the RHA, Logistics UK or another suitable independent body to be submitted to the Office of the Traffic Commissioner in Edinburgh by 28 February 2023. The audit will assess the systems from complying with maintenance and drivers hours requirements, and the effectiveness with which those systems are implemented. The audit should cover at least the applicable elements in the attached annex;

• To employ the services of Mr Quigley transport manager for a period of at least 12 months; and

• To carry out laden roller brake testing on all units at every PMI.

The applicant was placed on notice that the inquiry may be reconvened, subject to the outcome of the audit.

The audit was not produced by the initial deadline. I agreed to allow an extension to the deadline and the audit was eventually produced to my office on 28 April 2023. The findings were significantly adverse and the recommendations extensive. I thereafter directed that the public inquiry be reconvened.

3. The Public Inquiry

The inquiry called before me again at Edinburgh on 18 July 2023. Mr Doherty was in attendance.

4. Evidence

Mr Doherty told me that he apologised for the inconvenience caused by him having to be called back to public inquiry. In a nutshell, he had relied on Mr Quigley to sort his systems out and get things working properly. The girls in the office had been trying to get a hold of Mr Quigley for several months now but it had become apparent that he had just left them in the lurch.

Mr Doherty had gone to another person now – John Dolan – who was going to set everything up properly and ensure they were going to be complaint. He told me that he had a contract with him but hadn’t brought it with him. .

When asked about the audit findings, Mr Doherty accepted that things were not as they should be. There were wholesale failures in the systems for managing driver hours and vehicle maintenance. No meaningful brake testing (only one unladen test result at MOT – which was carried out in NI) was being carried out, PMIs were not completed on time or at the specified maintenance provider, and no wheel torquing procedure was in place.

Mr Doherty accepted that he had failed to comply with the undertakings he had given when I granted the interim licence. He accepted the shortcomings identified by the audit. When asked about the audit finding which disclosed that his correspondence address was in NI and that his operating centre consisted of a 3x3m hut at the end of a dirt track which was insecure, not able to be accessed by the auditor, and which was not used for storage of documentation etc pertaining to the licence, Mr Doherty asked me to tell him who he could ask to do things properly.

Mr Doherty asked me for another chance. He had got someone else on board and would make sure things were done right now.

5. Consideration of the evidence and balancing

This case involves continued consideration of an application for an operator to who I had granted an interim licence for one vehicle. The operator has a history of non compliance in Northern Ireland and had been operating unlawfully in the Scottish traffic area for some time before the application was made. Mr Doherty is the sole director of the operator company and his actions can therefore be equated with it.

Mr Doherty assured me at the first hearing that the unlawful operation had been a result of a misunderstanding. He had hired Mr Quigley to sort things out and he promised that he would operate compliantly. The problems in Northern Ireland were behind him. Mr Doherty was reminded that the obligation was on him to ensure compliance with the undertakings on the licence.

The audit which has been produced clearly demonstrates that Mr Doherty has not operated compliantly. The findings are amongst some of the worst I have seen. Mr Doherty has also failed to comply with the undertakings he gave at the previous inquiry, with the exception of producing the audit, albeit late. He was given a chance to prove that he could operate compliantly and has failed, in quite spectacular manner, to do so.

It is of grave concern that Mr Doherty’s vehicle is not receiving regular PMIs. There is no regular brake testing, no record of wheel torquing and few functioning systems to ensure compliance with the licence undertakings. Put plainly, if allowed to continue to operate, this operator is an accident waiting to happen. Road safety has already undoubtedly been placed at risk.

I accept that Mr Doherty is sorry and feels let down by Mr Quigley. I also accept that he has now sought to employ someone new to deal with compliance. However, it was clear from his evidence and comments at inquiry that Mr Doherty had very little idea of what was required of an operator of heavy goods vehicles. I was also left with the impression that he still does not grasp the seriousness of the situation, despite two appearances at public inquiry.

The operator, under Mr Doherty’s stewardship, is patently not fit to hold an operator licence. There are wholesale failures in systems, failures to comply with undertakings, the operating centre is not suitable for that purpose, and a prohibition for vehicle overweight has been issued. Formal findings in terms of sections 13B, 13C(2),13C(3) 13C(4), 13C(5), 26(1)(c)(iii), 26(1)(ca) and 26(1)(e) are made out.

It is for an applicant to satisfy me that they meet the statutory requirements for the licence applied for. Mr Doherty has failed to do so. In Aspey Trucks Ltd 2010/49 the Upper Tribunal set out the role of the Traffic Commissioner in considering an application. They said:

“In a case such as this, the Deputy Traffic Commissioner was not looking at putting someone out of business. Rather, he was deciding whether or not to give his official seal of approval to a person seeking to join an industry where those licensed to operate on a Standard National or Standard International basis must, by virtue of S.13(3), prove upon entry to it that they are of good repute. In this respect, Traffic Commissioners are the gatekeepers to the industry – and the public, other operators, and customers and competitors alike, all expect that those permitted to join the industry will not blemish or undermine its good name, or abuse the privileges that it bestows. What does “Repute” mean if it does not refer to the reasonable opinions of other properly interested right-thinking people, be they members of the public or law-abiding participants in the industry”

Given my findings in this case, I cannot find this applicant to have repute at this juncture. I cannot therefore give this applicant my official seal of approval. The applications for restricted operator licences are refused.

Should Mr Doherty wish to apply again in the future he will have to demonstrate that he has significantly improved his knowledge and understanding of what is required of an operator of heavy goods vehicles.

Claire M Gilmore

Traffic Commissioner for Scotland

18 July 2023