Decision

Decision for O’Harte Transport Limited

Published 8 November 2024

0.1 IN THE NORTH WEST TRAFFIC AREA

1. IN THE MATTER OF DETAINED VEHICLE – 202MN66

2. Applicant O’HARTE TRANSPORT LIMITED

-v-

3. Respondent THE DRIVER AND VEHICLE SERVICES AGENCY (DVSA)

4. TRAFFIC COMMISSIONER’S DECISION

5. Introduction

This decision concerns a Renault 6x2 tractor unit, with registration number 202MN66 (“the vehicle”) registered in Ireland that was impounded by the DVSA (“the Respondent”) on 10 August 2024.

O’Harte Transport Limited (“the Applicant”) asserted ownership of the vehicle at the time of the impounding and applied for its return.

This hearing was arranged to consider the application in accordance with the provisions of the Goods Vehicles (Enforcement Powers) Regulations 2001 (“the Regulations”) and the Senior Traffic Commissioner’s Statutory Document Number 7: Impounding (“SD7”).

6. Background

Vehicle 2020MN66 was stopped by the DVSA at Sandbach Services Southbound. At the time of the stop the vehicle was laden with a tractor. The DVSA determined that the vehicle was being operated in breach of cabotage rules and, having checked that a pre-impounding letter was previously issued for a similar breach, the vehicle was impounded.

7. The Law

Section 2(1) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) provides that no person shall use a goods vehicle on a road for the carriage of goods:

a) for hire or reward; or

b) for or in connection with any trade or business carried on by him,

except under a licence issued by this Act.

The Goods Vehicles (Enforcement Powers) Regulations 2001, as amended, allow for the detention and disposal of vehicles which are not being operated legally. The Regulations also provide the limited grounds upon which an application can be made to a traffic commissioner for the return of the vehicle.

The owner of a detained vehicle may, within a specified period, apply to the traffic commissioner for the area in which the vehicle was detained for the return of the vehicle.

8. The Application

I note that the statutory notices have been made, with the notice of the impounding published in the Gazette on 15 August 2024, and an application was made within the required timeframe.

The application for return of the detained vehicle was received in the Office of the Traffic Commissioner on 20 August 2024. The application referred to the owner as being O’Harte Transport Limited, with an address at Coraghy, Clones, Monaghan, Eire. At section 4 the Applicant has asked for a hearing to be arranged.

The application was made under Ground d) namely: that although knowing at the time the vehicle was detained that it was being, or had been, used in contravention of section 2 of the 1995 Act, the owner—

• had taken steps with a view to preventing that use; and
• has taken steps with a view to preventing any further such use.

9. The Hearing

The hearing was listed at Golborne on Thursday 10 October 2024. The applicant and respondent were informed of the hearing date by letter dated 28 August 2024. Due to pre-planned travel on the part of the Applicant’s Managing Director, the timeframe for convening the hearing was extended under provision of Regulation 23 to allow the case to be dealt with fairly and justly.

The Applicant was attended by its Managing Director, Mr Aidan O’Harte, and represented by Millicent Dooher, Counsel for the applicant.

The Respondent was attended by Traffic Examiner (”TE”) Joanne Henharen.

10. Evidence

10.1 Ownership

The applicant’s statement in respect of ownership was adopted as his evidence. This referred to a number of documents within the bundle which, they asserted, served as sufficient evidence as to their claim of ownership. On the point of ownership the DVSA offered no comments in direct support or challenge as to the claim.

10.2 Respondent’s Evidence

The statement provided by TE Henharen was adopted as her evidence. This referred to Saturday 10th August 2024. At approximately 14:30 hrs an Irish registered heavy goods vehicle, 202MN66, was directed into the check site for the purposes of a drivers’ hours check and a construction & use check by a uniformed stopping officer.  The vehicle was a HGV Renault Articulated vehicle in the livery of O’Harte Transport Ltd. The driver was a Richard Alun Jones, and the vehicle was laden with a tractor.

TE Henharen downloaded the vehicle unit and driver card data for analysis and checked the HGV levy Portal. The driver card and VU data found that the driver was in the UK since 15 July 2024. The TE was informed that the user of the vehicle was O’Harte Transport Ltd, of Caraghy, Clones Co Monaghan, Ireland.

Driver Jones provided a valid community authorisation and insurance certificate. On investigation TE Henharen satisfied herself that the vehicle had been working in the UK since 15 July 2024 and was used for a 25-day period in the UK between 15/07/2024 to 10/08/2024. It was found that the vehicle often collected loads from the Ports and took Amazon loads back to the port.

Further investigation, assessing the evidence on the driver’s phone, indicated that the vehicle had breached the cabotage regulations which restrict an international operator to undertaking 2 laden journeys in the UK within 7 days following the incoming laden journey from the EU.

In support, I was provided with various pieces of documentary evidence including a delivery document dated 10 August 2024, a HGV Levy extract, ANPR records and a series of screenshots which illustrates that the operator had been in the UK beyond the period allowable under cabotage rules and had picked up much more than the allowed two trailers / loads during its time in the UK. Furthermore, I was told that the driver was unable to produce documentation, as he is required, to evidence that he was compliant with the cabotage regulations. I was advised that this is because any records, including CMRs or load documents, were shipped back to Ireland each week.

TE Henharen checked the pre-Impound list and found that the identified user company, O’Harte Transport Ltd, had been sent a pre-impounding warning letter on the date of 14 December 2021. This letter was issued following a previous encounter on 10 December 2021 where the user was found to be in breach of the cabotage regulations.

The DVSA’s contention was therefore that O’Harte Transport Limited was the user of the vehicle, it had previously been issued a pre-impounding notice, and it was operating on this occasion in further breach of the cabotage regulations. The vehicle was therefore impounded.

10.3 Applicant’s Evidence

The statement provided by Mr O’Harte was adopted as his evidence. He further set out that there are two companies, one for Irish operations and one for UK operations. Although the UK company has a base in County Tyrone (Northern Ireland) it was confirmed that both are operated from the company HQ in Clones (Republic of Ireland).

Mr O’Harte is the Managing Director and he is assisted by Ms Margaret Nuttall, Transport Manager, and two transport planners; Mr Deery and Mr Day. Each morning at 10am the four of them meet to discuss the operations and planning. Everyone contributes to that meeting. The two planners have been with the company (1) since July 2023 and (2) since earlier this year, although this is a recent promotion to planner having previously worked as a driver with the company since 2019. Both planners are qualified HGV drivers and hold Drivers CPC qualifications.

Immediately prior to the date of the stop Mr O’Harte was on vacation, and Ms Nuttall was left in charge. Due to unforeseen circumstances she had to leave Ireland to attend a family emergency. The two transport planners were therefore left in charge.

Mr O’Harte was unaware of this change in arrangements initially but stated that he would otherwise have been confident that the planners would have been able to manage. Both were experienced drivers, and now planners who, I was advised, had received adequate training. This was clarified – in the words of Mr O’Harte firstly in regard to the planner who previously worked for him as a driver, that Mr O’Harte “assumed that he was experienced as a driver and would know” and further stated he “would have had a feeling” that the training and knowledge was in place. Secondly, in relation to the planner who joined in 2023 Mr O’Harte stated that “he would have been trained by his previous employer”.

Despite this, Mr O’Harte went on to state that he and Ms Nutall provided in-house training – this was done verbally with no records kept - and had provided planners with training documentation. Additionally, I was advised, Ms Nutall would have regularly scheduled “erroneous journeys” to the planning to see if the planners picked them up as being breaches of cabotage and if they responded accordingly. I was told the planners successfully identified these test cases.

In support of training I was provided with a copy of the RSA (Road Safety Authority, Ireland) Guide to Drivers Hours; a guide to applying for an Irish Operator’s Licence; a blank application form for an Irish Operator’s Licence, an extract from Lowes Annual Transport Manager and Operator Handbook 2024, and a single page extract from an unnamed training document by a company called EOS Training Ltd from 2013.

As a result of this training Mr O’Harte was confident that the planners could be trusted. I was told the circumstances set out at paragraph 25 were unexpected and the breach subsequently occurred. Since then the company has investigated, disciplined the relevant staff and taken steps to prevent further occurrence. This involved enrolling the Transport Planners on Transport Manager CPC Courses, at the cost of the company.

Along with this additional training a UK company has been set up, it holds a Goods Vehicle Operator’s Licence in Northern Ireland, and more vehicles are currently being purchased to be added to the margin available on that licence. ROI vehicles would be traded in return. It was put to me that although this is not yet complete the process has started but been delayed by the lead times for the receipt of the new vehicles.

In closing submissions Counsel for the Applicant invited me to find that the evidence provided through oral submissions, along with material evidence, satisfy the tests set out in Upper Tribunal Case T/2016/08 Van Der Gaag Transport De Lier BV vs DVSA (“VDG”). I was invited to consider that the list set out in that case was not a template, that oral evidence is not negligible, and that each case is fact specific.

11. Preliminary Matter

On the papers, the DVSA sought to argue that the applicant was incorrect to apply under Ground d). They submitted that, as Mr O’Harte and his Transport Manager, Mrs Nutall, claimed not to know of the unlawful use, as they were out of the country, that the application should be considered under Ground c) – “knowledge”.

On this issue I note that firstly, the applicant had already conceded constructive knowledge, correctly identifying the point made by the Senior Traffic Commissioner in Statutory Document 7 that “In the case of corporate applicants, whilst a company is often likened to a human body, with its directors acting as the controlling mind it is not the knowledge of the directors but that of the company as a whole, which may be under consideration. Where the company has a clear process, for instance for checking whether there was an operator’s licence, and that process is ignored by a member of staff, the Transport Tribunal has rejected an argument that this is merely negligent, as the company was on notice of the requirement”.

Further, I am aware of no authority which suggests that anyone, other than the applicant, can set out the grounds for return on which they rely. It is for the applicant to make that determination and then seek to satisfy the Traffic Commissioner that the grounds for return are subsequently made out.

As the point was not argued any further by the DVSA I continue to consider the application under Ground d).

12. Findings

12.1 Ownership

I am satisfied on the balance of probabilities that the applicant is the owner of the vehicle. I make this finding on the basis of the evidence which included witness testimony from Mr Aidan O’Harte, a vehicle logbook, a copy of the original payment agreement and a confirmation of purchase from Volvo Finance all of which refer to the same chassis number (VF610C367LD000671). Further, I have had sight of a finance agreement and a final document from Volvo Finance to the applicant company confirming that all payments have been received by them. This issue of ownership was not contested by the DVSA.

12.2 Lawful Detention

On the question of lawful detention, I conclude that the respondent has satisfied me as to their right to detain the vehicle. Materials, as set out at paragraph 20 above, evidence that the vehicle had exceeded the allowable time and volume of cabotage journeys since its entry into the UK, and further that the driver was unable to produce documentation, as he is required, to evidence that he was compliant with the cabotage regulations. The lawfulness of the detention was conceded by the Applicant, although they did state that whilst they accept the pre-impound letter exists, they state they did not receive a copy of it.

12.3 Grounds for Return

The Applicant has failed to satisfy me that the grounds for return are made out.

As previously stated, the applicant’s claim for the return of the vehicle relies on the grounds set out in paragraph 4(3)(d) of the Regulations, namely that although knowing at the time the vehicle was detained that it was being, or had been, used in contravention of section 2 of the 1995 Act, the owner—

• had taken steps with a view to preventing that use; and
• has taken steps with a view to preventing any further such use.

12.4 Ground d (i)

In relation to part (i) the Applicant has failed to satisfy me that, as owner, they had taken steps with a view to preventing that use. Mr O’Harte confirmed to me that the company policy is, and continued to be as at the date of the hearing, that all records regarding work, including CMR documents, are shipped to the ROI location each Friday. Article 8(3) of Retained EU Regulation 1072/2009 requires that “National road haulage services carried out in the [United Kingdom] by a non-resident haulier shall only be deemed to conform with this Regulation (cabotage) if the haulier can produce clear evidence of the incoming international carriage and of each consecutive cabotage operation carried out.”

In the DVSA stop in question this company policy resulted in the driver being unable to produce the records required and this failure to produce was listed as a reason for the impounding. When I asked Mr O’Harte to confirm my understanding that this policy would result in breaches he explained that they took that approach for the purposes of invoicing & cashflow. I asked him if he understood my concerns that that would mean his policy would result in cabotage rules being breached. He acknowledged this stating “Maybe, a little bit, if I look at it that way, yes. But it wouldn’t be the way we’d want it done.” I emphasised that whilst we can consider best practice for going forward, my focus was on how it was done at the time, and how it’s currently done.

With regard to the evidence provided, I accept the submissions for the Applicant that oral evidence is relevant, but I refer to the advice of the Upper Tribunal at the end of paragraph 38 of “VDG”

“In view of the fact that the impounding provisions are designed to prevent criminal offending, we are not satisfied that in the case of a company, oral evidence alone (however credible the TC may find it to be) will be sufficient under paragraph 4(3)(d) because one of the tasks of the TC will be to consider the efficacy of the steps relied upon by the applicant. For example, it may be accepted that training was given to the planning team of the owner/operator but perusal of the training documents themselves may reveal that the training was in fact inadequate. It may be accepted that an instruction had been given to planners and drivers about the documents which the driver must carry with him to claim lawful cabotage but perusal of that written instruction may reveal that the instruction was incorrect or in some other way inadequate.” (emphasis added is my own).

• The training, I was told, was verbal. I was provided no detail of when this was delivered, or what it entailed. Nor was I provided with any further detail on the erroneous journeys put in place to test planners. I have had no opportunity to assess or consider the appropriateness, accuracy, or value of this training.
• I find the RSA Guide to Drivers Hours to be generic, publicly available and offer little specific training in respect of the transport operations of the applicant company.
• The guide to applying for an Irish Operator’s Licence, and copy of a blank licence application form, are irrelevant to the roles of transport planner or driver, and neither refer to cabotage,
• The extract from “Lowes” references the 7/3 cabotage rules for cabotage across EU Member States and the extract provided did not reference UK Cabotage Rules or guidance. As such, as a training document for cabotage operations in the UK, it is inadequate.
• The single page extract from a training document by EOS Training Ltd was out of date (dated 2013) and incorrectly referred to three cabotage journeys in the seven day period. Again, it is inadequate.
• I was offered no evidence to demonstrate the instructions and procedures which were in place to ensure that the driver of the vehicle had with him the necessary documents for inspection – as set out above, I was advised that company policy was contrary to this requirement.
• In terms of the disciplining of staff I was told that as at the date of the hearing the applicant had yet to speak to the driver, and in respect of the planners, whilst I note the positive step warnings being evidenced, I was also advised that they would be retrained as Transport Managers and essentially promoted into that role. Whilst I commend the retraining aspect, I would question the effectiveness of promotion as a disciplinary outcome.

In the positive I was given some information relating to the systems in place, and improvements that are planned to be made to that system in the future, but this is a positive against the backdrop of significant and numerous negatives as set out above. The system itself had failed and, in the main, I have been unable to assess the efficacy of the evidence and that which I have been able to assess I conclude to be generic, irrelevant and, in some cases, incorrect.

12.5 Ground d (ii)

In relation to part (ii) the Applicant has failed to satisfy me that, as owner, it has taken steps with a view to preventing any further such use.

The Applicant relies on the finding of the Traffic Commissioner in VDG in the first instance to accept the establishment of a UK company to conduct the majority of the haulage within the UK as “a positive and potentially effective step”.

I note however that the Applicant’s UK company predated the impounding and therefore I must question the effectiveness of this approach as a step taken with a view to preventing further use. Whilst I accept that in normal circumstances a planned purchase of vehicles would provide some evidence steps taken with a view to prevent future use, I was informed by Mr O’Harte that the UK operations were staffed by Ms Nuttall as TM, and one of the transport planners. Both, however, are office based in the Republic of Ireland. It is a mandatory and ongoing requirement, under Section 12A(2)(a) of the Goods Vehicles (Licensing of Operators (Northern Ireland) Act 2010 for the holder of a Northern Ireland Operator’s Licence to have an effective and stable establishment in Northern Ireland. This includes, as per Regulation 4A(2)(a)(ii) of the Goods Vehicles (Qualifications of Operators) Regulations (NI) 2012 – that they have “premises in Northern Ireland at which the person carries out effectively and continuously, with appropriate equipment and facilities, the administration of the person’s transport service”. On the basis of the evidence before me I cannot accept that the reliance on the Northern Ireland licence is sufficient as its use appears to be currently unlawful.

Further to my concerns on the reliance of the NI licence, and that it was in place before the impounding, I have concerns in respect of the investigation completed by the applicant company. Mr O’Harte confirmed to me at the hearing that he still doesn’t know how or why the cabotage breach happened. I therefore question how robust any investigation was and how any effective preventative steps could be identified and implemented if the cause remains unknown.

I have already commented on the outcome of those investigations in respect of what appears to be a promotion for the planners, and I was concerned to be told at the hearing that there has been no process of discipline for the driver and in fact, as at the date of the hearing, the company had still not managed to speak with the driver on the matter. The operator has failed to satisfy me that this driver has been sufficiently educated on the issue and the seriousness of the matter.

I have also commented above on the potential effect of the company policy of returning documentation to Ireland each Friday. That this had not been changed as at the date of the hearing, it again appears more likely that not that, on this matter alone, steps have not been taken with a view to preventing future breaches of cabotage rules.

I was invited to consider that more would have been done, earlier, had the Applicant received the pre-impounding letter of 2021. It is, however, for an operator to comply with the lawful requirements of cabotage operations at all times, and not just to take steps upon notification of unlawful operations.

As is set out in case law, the correct test is whether the Applicant can satisfy me that the grounds for return are made out. For the reasons set out at paragraphs 38 to 50  above they have failed to do so. As a result, the application for return of the vehicle must fail.

David Mullan

Traffic Commissioner for the North West of England

21 October 2024