Decision

Written Confirmation of the Traffic Commissioner’s Decision for B M Plant Hire and Haulage Ltd (OF2063890)

Published 1 August 2024

0.1 In the Eastern Traffic Area

1. Written Confirmation of the Traffic Commissioner’s Decision

2. Public Inquiry held on 18 July 2024 at Cambridge

2.1 Operator: B M Plant Hire and Haulage Ltd (OF2063890)

3. Background

B M Plant Hire and Haulage Ltd sought a Standard National Goods Vehicle Operator’s Licence authorising 2 vehicles and 2 trailers. The Director is Brian Thomas Morrissey who nominated himself to act as the Transport Manager. He qualified in 1999 and completed a CPC refresher course in February 2023 (see below). He intended to commit 5 hours per week to those duties. He declared further commitments as a driver, working 8 hours per day (Monday to Friday – see below).

There was one nominated site at Maple Lodge, Denham Way, Maple Cross, Rickmansworth, WD3 9SQ. Preventative Maintenance Inspections were said to be carried out by Bulk Transfer Ltd (at the same address) at 6-weekly intervals.

The applicant company was incorporated on 16 November 2022. Mr Morrissey previously held OK0232144 in his own name from 7 June 2002 until it was surrendered on 30 September 2010. He attended Public Inquiries on 23 July 2007 and 21 July 2009 regarding concerns for maintenance. He obtained a licence in this traffic area, OF1092733, on 6 September 2010. That was surrendered on 26 July 2016, having attended Public Inquiry on 29 April 2015. He was then sole Director and Transport Manager for Port Lairge Haulage Ltd, which held OF1143908 from 6 May 2016 until it was revoked on 29 March 2019, having entered voluntary liquidation on 21 December 2018. He was formerly a Director of M&M Transport Solutions Limited - OF2018928, but that appointment was not notified. It was also based at this proposed site.

4. Hearing

The Public Inquiry was originally listed for 26 October 2023, when the applicant appeared before the Deputy Traffic Commissioner. Regrettably she was not available to hear the relisted hearing on 17 July 2024 and it was finally relisted before me on 18 July 2024 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The applicant was present in the form of the Director and nominated CPC holder, Mr Morrissey.

5. Issues

The public inquiry was called, giving notice that I was considering grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

• 26(1)(b) – conditions on licence to notify changes, in this case relating to the Transport Manager’s abilities.

• 26(1)(c)(iii) – prohibitions (pages 97 onwards)

• 26(1)(e) – statements relating to inspection intervals, who was responsible for continuous and effective management, and to abide by conditions on the licence.

• 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records, drivers’ hours and tachographs).

• 26(1)(h) – material change;

• 27(1)(a) – repute, financial standing, and a Transport Manager meeting Schedule 3.

• 28 – Disqualification.

Mr Morrisey was called separately to consider his repute as Transport Manager, under section 27(1)(b) and Schedule 3. However, I noted that the existing licence had lapsed with the applicant having previously invited the interim to come to an end on 5 July 2024. I therefore gave Mr Morrissey the benefit of the doubt and considered his efforts as part of the application, rather than making a formal finding against his repute.

The hearing provided a further opportunity to the applicant to satisfy me that the statutory criteria were met and specifically by reference to the following sections of the same legislation:

• 13A(2)(b) – good repute through the fitness of its Director.

• 13A(2)(c) – requisite financial standing.

• 13A(3) – having a Transport Manager meeting Schedule 3.

• 13C(2) – satisfactory arrangements to comply with the law regarding drivers’ hours.

• 13C(4) – satisfactory facilities and arrangements for maintaining vehicles in a fit and serviceable condition.

• 13D – maintenance not to be prejudiced by a lack of available finance.

The operator was directed to lodge evidence in support by 3 July 2024, including financial, maintenance and other compliance documentation.  The applicant was required to show financial standing of £12,500 for 2 Vehicles and 2 trailers. It originally relied on statements for 1 to 31 March 2023. It was subsequently granted interim authority to operate 1 vehicle and 1 trailer. In advance of this Public Inquiry, it supplied 3 months of financial evidence, given that it had been permitted to operate. That showed sufficient funds to support 1 vehicle. The applicant failed to supply admissible financial evidence despite the warning in the call up letter of 12 June 2024 (page 9 of the bundle).

6. Determination

It was noticed that Mr Morrissey is also employed on a full-time basis as a driver (for OF1125912 - Bulk Transfer Ltd – see below). The applicant failed to satisfy a colleague on the papers that the statutory criteria were met. Reference was made to the Director’s previous history with OF1143908 Port Lairge Haulage Ltd:

In reply to your correspondence dated 28/06/2023 concerning my application for a goods vehicle operator’s licence and the Traffic commissioner’s concerns that I may not meet the requirement of good repute, I would like to offer a response to help demonstrate that I will be able to meet the mandatory requirements, if the application was to be granted.

My previous operator licence OF1143908 was revoked due to the company, Port Lairge Haulage Ltd, going into liquidation. There were no issues with drivers’ hours records or maintenance. The revocation was due to my inability to provide financial evidence, which was due to not receiving payments from customers at that time.

I strongly believe that in committing to a minimum of 5 hours a week, on an operator licence for 2 vehicles, that I will comfortably be able to fulfil my duties as both a Director and Transport Manager of BM Plant Hire and Haulage Limited. The proposal of 5 hours is more than the 2 to 4 hours proposed in the guidance for an operator of a licence with 2 vehicles or less.

Having had time to reflect over the last 4 years since my previous licence was revoked, I am confident that I will not run in to the same difficulties and will be able to start operating in a strong position, particularly as I have built good industry relations and have been assured regular haulage work, with weekly payments. The Traffic Commissioner’s concerns regarding the previous revocation are a result of financial standing and I would be willing to have a financial undertaking, if deemed necessary.

In stating the above, I sincerely hope that I manage to alleviate the Traffic Commissioner’s concerns and hope for a positive outcome, particularly after the time I’ve had to reflect and plan ahead.

The applicant was not able to satisfy the statutory requirements at a hearing on 26 October 2023, but the presiding Deputy Traffic Commissioner apparently adjourned in order to then issue Directions dated 1 November 2024. The decision suggested that the applicant was required to lodge the following with the Office of the Traffic Commissioner by 1 December 2023:

• An agreement in principle from Bulk Transfer Ltd for contracting work to the applicant company signed by both parties.

• A signed contract for external tachograph analysis.

• Written policies for Load security, Wheel, and tyre management, Adblue monitoring, Vehicles Off-Road, safety recalls, driver induction and training, Mobile phone, alcohol, and drug use.

I infer that the Deputy Traffic Commissioner was satisfied with the content as she granted interim authority to operate 1 vehicle and 1 trailer for a period of 6 months effective from 5 January 2024, with a finance review and compliance audit required before substantive grant, as per the following undertakings:

• Five months from the date of grant of the interim the operator will provide to the Eastern Area Office of the Traffic Commissioner documentary evidence to demonstrate that it continues to meet the requirements of financial standing to include bank statements for accounts in the company name for the preceding three months.

• Five months from the date of grant of the interim the operator will undertake a full maintenance and drivers hours compliance systems audit conducted by a trade body, competent independent person or body.  A copy of the report will be forwarded to the Eastern Area Office of the Traffic Commissioner within 7 days of production, together with the operator’s proposals for implementing the recommendations.

Less than two weeks later, on 25 January 2024, the operator was issued with an S-marked prohibition and several other immediate and delayed prohibitions at roadside following a DVSA stop. Those notices and 2 traffic offences prompted DVSA to carry out as Maintenance Investigation Visit on 27 February 2024 (page 51 onwards). The reported incidents suggested significant failures in maintenance and operation. Assurances were given that greater vigilance would be employed by drivers during walk rounds and when leaving tipping (landfill) sites, by the maintenance provider at inspection, and by tyre contractors. Vehicle Examiner, Christian Jones noted that the inspection frequency was being followed, with safety recall and off-road processes in place, but that inspection records omitted tyre ages which were captured on wheel and tyre management sheets. He referred to the Prohibition Notices of 25 January 2024. The arrangement with Road Rubber to supply and fit tyres with retorque was described as ad hoc. There was no record of formal training for safe loading.  

CU66 NXR then attracted three further Prohibitions on 14 March 2024, two of which were for driver detectable defects. Vehicle Examiner Jones was of the opinion that the defects detected on 14 March 2024 should have been clearly visible to the driver. The mechanical prohibition rate then showed at 75% for the short period of operation. I therefore put the operator on notice of potential action by way of a Proposal to Revoke the interim licence by reference to  sections 26(1)(b), (c)(iii), (e), (f) fit & serviceable, driver defect reporting, maintenance records, driver’s hours, (h) material change: repute, financial standing, a Transport Manager meeting Schedule 3 and as to his under section  27(1)(b).

An email from Mr Morrissey of 20 May 2024 to the Office of the Traffic Commissioner communicated the following:

After receiving your letter dated 29/04/2024 I now reply to address the concerns raised by the Traffic Commissioner in regard to my current interim operators licence.

After receiving my interim licence I then added a vehicle that was stopped shortly afterwards and issued with several prohibitions that led to a DVSA visit. The prohibitions that were issued at site were for a loose suspension arm, a worn wheel flange and damaged tyres (which I fully accept). I had presented this vehicle for annual test only a few weeks before where it had been fully prepared and resulted in a first timepass. For the vehicle to have then failed only a few weeks later for worn and loose parts shocked me as the vehicle had covered little mileage. Both my maintenance contractor and the vehicle tester had not noted these items or even advised on them.

I accept that there had been cuts in the tyres where the vehicle had just left a landfill site. The DVSA visit that followed was found to be mostly satisfactory after having discussed the matters with the vehicle examiner who attended my operating centre. I was of the belief that I was in a strong position after the visit before the further prohibitions for tyre damage were issued. This is a matter that I have worked on hard and do not believe should stop me from being an operator. I now ask for the Traffic Commissioner to consider my case and allow me to continue to operate on an interim and give me a chance to appear at a Public Inquiry where I can explain the events further. I hope that after having the earlier satisfactory assessment carried out by the DVSA at my operating centre shows that I can be trusted and the second encounter was not a true reflection of what I am trying to achieve. To confirm, I now request for a Public Inquiry in order to offer further assurances as to why the licence should not be revoked. Yours sincerely Brian Morrissey Director

The audit which the applicant undertook to the Deputy Traffic Commissioner to provide, was never received. An email from Mr Morrissey dated 16 July 2024, suggested: as to regards the audit I presumed as I had an in depth audit by Mr. Jones of the DVSA I thought this would have covered independent audit being carried out with Mr. Jones covering all of my maintenance systems. I thought that this would have exceeded any independent audit carried out. It had not occurred to him that the incident on 14 March 2024 might indicate otherwise.

The Vehicle Examiner, Mr Quargraine, prepared a very useful update dated 16 July 2024 of the applicant’s maintenance documentation produced in advance of the hearing. Those documents, emailed by Daniel Simpson  on 15 July 2024, consisted of :

• One planned  maintenance inspection record  for VRM: CU66 NXR  with unladen roller brake test printout.

• Three planned  maintenance inspection records for VRM: G3EFL  with unladen roller brake test printouts.

• Safety recall for Scania Truck G series 2017

• Tachograph calibration certificate for VRM G3EFL

• Driver daily defect reports for VRM: G3EFL

• Driver daily defect reports for VRM: CU66XNR

• Completed tyre retorque register

• Forward Planner for 2024/2025

As per the encounter record, no vehicles had been presented for annual test since the DVSA maintenance visit on 27 February 2024. He referred to the one roadside identifying 3 immediate prohibitable defects concerning tyres on CU66 NXR dated 14 March 2024. He noted that all four Preventative Maintenance Inspection records failed to record the operator’s name, licence number and chassis numbers. The odometer readings failed to specify where the record was in miles or kilometres. One record failed to record the vehicle model. Mr Quagraine compared the driver defect reports (completed by Mr Morrissey as driver) with the rectification work carried out and comments, as follows:

• Driver defects book  No. 2897483 for G3 EFL had tyre defect box ticked as satisfactory, but offside axle 3 and 4 tyres were changed.

• Driver defects book No 2912471 for CU66 NXR had lights/reflector/markers box ticked as satisfactory, but  nearside reversing lamp was changed, and rectification work not signed off or dated.

Mr Morrissey provided me with the email of 15 April 2024 notifying the Office of the Traffic Commissioner of a change of vehicle details for the interim licence. G3 EFL entered operation that day without having had a laden roller test of brake efficiency. The previous test had been unladen and the results reflected this. The three brake tests of this unit including 1 May 2024 and 18 June 2024 (with very high imbalances up to 29% across several axles) should have alerted him and the contractor to potential issues with the brake tester. They also help to illustrate the potential conflict where the maintenance contractor is also the only customer of the operation. Mr Morrissey was very frank about his friendship with that Director and the heavy reliance placed on that work. There is invoicing for some of the maintenance work or alternatively it is deducted from the money owed to him. That business relationship may continue in a different form.

On the basis of the evidence summarised above, and despite having been given extensive opportunities by the Deputy Traffic Commissioner, the applicant was not in a position to satisfy me to the civil standard that it met sections: 13A(2)(b) good repute, through the fitness of its Director to ensure compliance with the basic requirements of an operator’s licence, 13A(2)(c) as original evidence was not produced, 13A(3) as the circumstances described above did not amount to effective and continuous management as required under Schedule 3, resulting in failures to maintain the operational vehicle, as against 13C(4). For those reasons I refused this application.

R Turfitt
Traffic Commissioner

18 July 2024