Decision

Decision for M&M Waste LTD (OD2005676)

Published 23 May 2022

0.1 In the West Midlands Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 M&M WASTE LTD OD2005676

2. Background

M&M Waste Ltd holds a restricted goods vehicle operator licence for two vehicles. The licence was granted in October 2017. The directors of the company are Mark Elwell and Lee Morris.

2.1 DVSA Investigation

In December 2021 DVSA vehicle examiner Wayne Goodhead carried out a maintenance investigation into the company. His report marked the operator “unsatisfactory” for the following reasons:

• no preventative maintenance inspection records could be produced for the one vehicle currently in use (BU62 ZFN);

• there was no driver defect reporting system in place;

• there was no evidence of any roller brake tests taking place, despite an undertaking on the licence, given in August 2019 after a previous unsatisfactory maintenance report, that vehicles would be given at least four roller brake tests a year in addition to the one at MOT;

• the company had been operating for ten years without the required waste transfer licence from the Environmental Agency;

• the operator had no training in place for safe loading and unloading of skips;

• there was no tyre and wheel management system in place;

• there was a 100% failure rate at MOT (three failures from three presentations). Failure items were numerous on each occasion;

• vehicle BU62 ZFN had not been specified on the licence until 16 December 2021 (the day after the vehicle examiner’s visit on 15 December). However, VE Goodhead spoke to the operator’s declared maintainer, Action Garage Midlands, and in the course of the conversation ascertained that BU62 ZFN had been presented for a safety inspection by M&M Waste Ltd on 14 July 2021. The company had thus clearly been in possession of the vehicle for more than the one month allowed in which to specify it on the licence. Numerous defects on BU62 ZFN had been identified by Action Garage Midlands on 14 July but the operator had taken the vehicle back with the defects still present;

• the MOT of BU62 ZFN had expired on 30 June 2021: it was not given a new MOT until 13 December 2021, two days before the DVSA visit. It had apparently been operated out of MOT for several months;

• the operator’s response had been late and somewhat sparse.

3. Public inquiry

Concerned by this report, I called the operator to a public inquiry. The call-up letter was sent on 16 March 2022, citing Section 26(1)(b), (e), (f) and (h) of the 1995 Act.

The inquiry took place in Birmingham on 3 May 2022. Present were Jared Dunbar, solicitor, representing the company, director Mark Elwell and Carol Till, a transport consultant assisting the company. VE Wayne Goodhead also attended.

Mr Dunbar had helpfully provided submissions on behalf of the operator in advance. Amongst the points made were:

• BU62 ZFN had not been in business use until after the DVSA visit in December. It had been used on a limited number of occasions between August and December 2021 - road testing in empty condition and for occasional private use;

• driver defect books had been in use until the company’s previous vehicle AU55 EXS had been taken off the road in April 2021 [I noted that it was only despecified from the licence on 16 December 2021], and since December 2021 for BU62 ZFN;

• a tyre company had been engaged to monitor tyres and a wheel torque register introduced;

• drivers had received load security training;

• the operator had not realised that the undertaking relating to roller brake testing was a requirement. It was thought to be voluntary;

• it acknowledged that the MOT record was poor; a new maintenance provider had now been appointed;

• Mark Elwell had attended an operator licence management course on 15 March 2022;

• Carol Till had been engaged to provide advice on and assistance with compliance;

• preventative maintenance inspection records for AU55 EXS prior to being taken off road did exist and were attached;

• the operator had taken BU62 ZFN from Action Garage Midlands in July 2021 and repaired the defects itself;

• the operator possessed a waste carrier’s licence but had suspended the importation of waste pending granting of the appropriate [waste transfer?] licence.

These points were reiterated at the inquiry, with Mr Dunbar stressing that the operator had brought in Mrs Till to make improvements in February 2022, well before the call-up letter to the inquiry had been issued.

The inquiry discussed the use of BU62 ZFN while out of MOT and while not specified on the licence. Mr Elwell said that it had been road tested a little and then been painted throughout much of autumn 2021. At this point VE Wayne Goodhead intervened to say that, according to ANPR records, BU62 ZFN had been sighted on the highway network on 113 occasions on 39 different days between 1 September and 25 November 2021, during the whole of which period it was out of MOT and for which no preventative safety inspection records existed. I noted that the period 1 September to 25 November 2021 comprised 86 days in total, implying that BU62 ZFN had been used on a regular basis. This did not seem to accord with the “minimal use” explanation given by the operator. I adjourned the inquiry for 15 minutes to allow Mr Dunbar to take fresh instructions if necessary.

When the inquiry resumed Mr Dunbar said that the company had thought the vehicle had been driven for personal use but now accepted that it had been in commercial use on some of these occasions. Mr Dunbar though that the matter could be dealt with by way of a short suspension: things were not as bad as they had initially appeared in the DVSA investigation and revocation of the licence was not warranted.

4. Findings

After having considered all the evidence I make the following formal findings:

• the operator has failed to fulfil the promise given on application that vehicles would be given safety inspections every six weeks (Section 26(1)(e) of the 1995 Act refers). There are no safety inspection records for AU55 EXS between August 2020 and April 2021 when it was taken off the road. There are no safety inspection records for BU62 ZFN until 9 December 2021, although the vehicle was clearly in use throughout September, October and November;

• the operator has failed to fulfil its undertaking to keep vehicles fit and roadworthy (Section 26(1)(f) of the 1995 Act refers). Vehicles failed three MOT tests out of three on a wide range of safety critical items, with brake systems the common denominator;

• the operator has failed to fulfil its undertaking to have vehicles roller brake tested four times a year. No such tests were carried out;

• the operator has failed to fulfil its undertaking that drivers would report defects in writing. No defect reports exist for BU62 ZFN throughout the period 1 September to 30 November 2021. I have to record that I was highly suspicious that the defect books for AU55 EXS which were presented to me were manufactured after the event, so uniform was the writing and so pristine the books. However, I have stopped just short of making a finding to this effect;

• the operator has failed to fulfil its undertaking to ensure the lawful operation of vehicles. BU62 ZFN was driven on a regular basis between 1 September and 25 November 2021, when its MOT had expired on 30 June. There is no excuse for this: the operator acquired the vehicle from Commercial Truck Repairs on 27 January 2021 and should have either insisted on seeing the MOT certificate or looked it up online to confirm the MOT expiry date.

• the operator has failed to specify a vehicle on its licence within one month of its coming into its possession (Section 26(1)(h) and Section 5(6) of the 1995 Act refer).

• the company has been in the waste transfer business for several years without the necessary waste transfer licence. This calls into question the company’s fitness to hold an operator’s licence (Section 13B of the 1995 Act refers).

4.1 Balancing act

I carried out a balancing act. On the negative side were the above findings. On the positive side were the points put across by Mr Dunbar: these included the new maintenance provider, Mr Elwell’s attendance at an operator licence management course, load security training for the drivers, the engagement of a specialist company to manage tyres, and of Mrs Till to help with compliance. All of this had happened before the call-up letter. I concluded that, while the positive points are not negligible, they are outweighed by the negatives. I attach significant weight to the fact that the company has operated a vehicle without MOT and that it sought to conceal that fact by pretending that the vehicle had only been used in a very limited way for road tests and some private work. The company has been forced to accept – after VE Goodhead provided the ANPR data - that this is manifestly untrue. I also attach weight to the fact that the lapses in driver defect record keeping and in presenting vehicles for regular safety inspections has continued to occur, even after the operator received a warning from me for unsatisfactory maintenance in August 2019. The fact that the company has operated for many years without the required waste transfer licence also carries weight with me: it demonstrates (as does the vehicle with no MOT) that the company cannot be trusted to comply with the law.

4.2 Priority Freight and Bryan Haulage questions

I considered the Priority Freight question of how likely it is that the operator will comply in future. Given that the company has already received a warning for poor maintenance in August 2019 yet two and a half years later was found by DVSA to have failed to have made the necessary improvements, failed to fulfil its undertaking to have vehicles roller brake tested (with the unsurprising result that there had been further MOT failures for brakes), and either deliberately or through gross negligence operated a vehicle out of MOT (and sought to conceal this fact), I conclude that the answer is highly unlikely.

A negative answer to the Priority Freight question tends to suggest an affirmative answer to the Bryan Haulage question of whether the operator deserves to go out of business. In this case, we are talking of a restrictive licence holder, so it might be possible for the company to arrange for its transport needs to be met by a standard licence holder. But even if it is not, the scale of failure and disregard for the law described above is such that I conclude that going out of business would be a merited outcome. The company has jeopardised road safety and has gained a commercial advantage over compliant competitors by operating a vehicle out of MOT and with no safety inspections.

5. Decision

5.1 Revocation of the licence

I hereby revoke the licence under Section 26(1)(e), (f) and (h) of the 1995 Act, with effect from 0001 hours on 18 June 2022.

5.2 Disqualification of the company and its director

For the reasons outlined above, and having performed the same balancing act, I conclude that M&M Waste Ltd and its directors Mark Elwell and Lee Morris should be disqualified under Section 28 from holding or obtaining an operator’s licence in the future. In deciding upon the length of the disqualification, I have taken account of paragraph 103 of the Senior Traffic Commissioner’s Statutory Guidance Document 10. This posits a starting point of between one and three years for a first public inquiry (which this is).

I consider that, given the level and duration of non-compliance and the company’s failure to heed the warning of August 2019, a disqualification period of 18 months - the mid-point in this one to three year range - is the least which is required. The company and its directors should use this period, if they wish ever to re-enter the industry, to reflect on what went wrong, to undergo thorough training on the duties and responsibilities of a licence holder, and to design robust compliance systems which are operational from day one of any future licence. I am thus disqualifying both the company and its directors from holding an operator’s licence until 18 December 2023.

5.3 Enforcement of this decision

I am requesting DVSA and the Police to employ their ANPR and on-road resources to identify and stop vehicles operated by M&M Waste Ltd once the revocation of the licence has come into effect. Any such vehicle they find carrying goods on the public road on or after 18 June 2022 will be liable to be impounded.

Nicholas Denton

Traffic Commissioner

18 May 2022