Decision for Team Pro Scaffolding (SW) Ltd (OH2074195)
The Deputy Traffic Commissioner for Western England's written decision for Team Pro Scaffolding (SW) Ltd (OH2074195)
In the Western Traffic Area
Written Decision of the Deputy Traffic Commissioner
Public Inquiry held on 6 November 2024 in Bristol
Operator: Team Pro Scaffolding (SW) Ltd (OH2074195)
REASONS FOR DECISION
Background
This application by the Applicant for a restricted goods vehicle operator’s licence seeking to authorise the use of 4 vehicles and 0 trailers was received by the Office of the Traffic Commissioner on 16 May 2024. No vehicle details were specified on the application form.
The Applicant was incorporated on 25 May 2020 and filed accounts for a dormant company up to the year ended 31 March 2024. Mrs Heather Sullivan was appointed as sole director of the Applicant on 6 October 2023, replacing Mr Terry Sullivan who resigned with effect from 31 October 2023. It would appear from Companies House records that the shareholding in the business also transferred from Mr Terry Sullivan to Mrs Heather Sullivan and Mr Daniel Sullivan in November 2023. Mrs Heather Sullivan and Mr Daniel Sullivan are married, and Mr Terry Sullivan is Mr Daniel Sullivan’s father.
Various operator licences were previously held by a company, linked to Mr Daniel Sullivan and Mrs Heather Sullivan as director/previous director and as shareholders, named Pro Scaffolding (South West ) Limited that changed its name to Pro Services Group Limited on 16 March 2022. The company was called to several public Inquiries between 2015 and 2021 to consider various compliance issues on operator licences held by the company (OH1119680 – Granted on 7 January 2014 and revoked after a Public Inquiry, with effect from 30 November 2015; OH1143659- granted after a Public Inquiry on 7 June 2017 and revoked after a Public Inquiry with effect from 8 November 2019 ;OH02027042- granted 11 February 2020 and curtailed after a Public Inquiry in 2021 and revoked with effect from 5 March 2024 after loss of professional competence and having entered creditors’ voluntary liquidation on 19 February 2024).
The present application follows a previous application made by the Applicant on 16 November 2023 (reference OH2070033) which, after a Public Inquiry held on 17 April 2024 was refused by the Traffic Commissioner for the reasons set out in his written decision dated 23 April 2024 (‘the Written Decision’).
The Traffic Commissioner determined that this application should be considered at a Public Inquiry by reason of the above licensing history, including the reasons given for refusing the Applicant’s previous application set out in the Written Decision.
The Applicant was called to this Public Inquiry by a letter from the Office of the Traffic Commissioner, Bristol ( ‘OTC’) dated 2 October 2024 ( ‘the Call Up Letter’). The OTC prepared and provided an indexed Brief for the Public Inquiry, which was also made available in digital format accessed through the Thompson Reuters Case Center digital platform.
The Public Inquiry
The Public Inquiry took place in the hearing room at the OTC on 6 November 2024.
The Applicant attended acting by its sole director and joint shareholder Mrs Heather Sullivan. The Applicant was represented by Mr Philip Brown, Consultant Solicitor of AMD Solicitors, Bristol. We had received written representations for the Applicant in advance of the hearing, as well as comprehensive documentation seeking to demonstrate the compliance systems and records that would be in place if the application were to be granted. In addition, evidence of available finance in the name of the company was produced to satisfy the requirements of section 13D of the Act.
At the end of the Inquiry hearing, I ordered as follows:
The decision on this application is reserved to DTC Fiona Harrington for a written decision following completion of the following directions given at the close of the hearing:
OTC Bristol shall request an ANPR report and registered keeper check for each of the following vehicles for the period from 23 April 2024 to 6 November 2024, today’s date:
NK15 0EE
NK15 0ED
MX62 AHK
PO13 NLC
The foregoing reports shall be copied to the Applicant and its solicitor, Mr P Brown of AMD Solicitors. Any written response to the report findings must be received by OTC Bristol within 28 days of the date of the OTC letter to the Operator and its legal representative enclosing the reports.
The day following the Inquiry I was advised by the OTC that DVSA had reported an encounter on 7 November 2024 on the morning following the Inquiry at the DVSA check site at Llantrisant with one of the foregoing vehicles, VRM NK15 0EE a 26,000kgs 3 axle Mercedes lorry laden with scaffolding. The vehicle appeared to be in use by the Applicant company in the scaffolding part of its business without the authority of an operator’s licence. In addition, the vehicle was in use of the highway without a valid annual test (MOT) certificate, the previous MOT certificate having expired on 31 May 2024. A written report was received by DVSA Traffic Examiner (TE) David Haines-Burke concerning this encounter and his interview of the vehicle’s driver, Mr John Cashman who is reported as stating he was employed and working for the Applicant and was on a journey that day from Bristol to Port Talbot to erect scaffolding. In addition, on interview the driver admitted that he had more than one driver’s digital tachograph card and was issued with a Fixed Penalty Notice for this offence. The TE was also concerned that it appeared the vehicle had been driven on multiple occasions without a corresponding driver card record for that driving. The driver explained that he had been driving HGV for the Applicant for some 14 Months and that day the vehicle had been loaded ‘by 4 of us’ at the Applicant’s proposed operating centre, He stated that he received his instructions as a job list with duties for the day from the company owner, ‘Heather or Dan or one of them’ through a ‘Whats App group chat’.
I directed that the TE’s report should be provided to the Applicant for response together with the ANPR reports received pursuant to my directions above.
Mr Philip Brown responded to the foregoing in his detailed letter dated 25 November 2024.
I have now therefore proceeded to make my decision.
Considerations and Findings
Given the foregoing history of adverse compliance linked to the Applicant through its directors and shareholders, I have first considered if the Applicant has discharged the evidential burden on it to satisfy me on the balance of probability that it is not unfit obtain the licence it has applied for.
I accept and adopt as if set out in full herein the Written Decision and, in particular, note the following comments made by TC Rooney in that decision:
‘Having considered all the evidence carefully, I make two findings.
The first finding I make is that this business is a continuation in full or in part of [Pro Services Group Limited] following the entry of that company in to a carefully planned insolvency with a shortfall of just short of £1 Million. …. For an application from this company to succeed in the future, that insolvency must be declared and the situation leading to it, and the conduct of both directors and shareholders during it, will be scrutinised with care. In saying this, I also have in mind the decision in T/2010/83 PF Boomer t/a Carousel, where the Transport Tribunal found that “The Traffic Commissioner’s trust in operators’ ethical business practices was essential to effective and compliant regulation”.
The second finding I make is that the applicant director has sought to mislead me throughout the application process and has said and produced things, in written and oral evidence, that are simply untrue. I make my findings on the civil standard of proof – more likely than not’.
The Applicant acting through its sole director Mrs Sullivan accepts that this application is inextricably connected to the Sullivan family scaffolding business. She also accepts the previous history of the Applicant, and the connected legal entity, will be relevant in respect of the issue of the Applicant’s fitness in the current application. Mrs Sullivan accepts and understands the reasons for the refusal of the previous application by TC Rooney. She has since dispensed with the services of the transport consultant assisting her with that previous refused application – Mr Shaun Matthew Keaney, who I noted was the transport manager for the Pro Services Group Limited licence between August 2023 and 31 January 2024.
The Applicant in its representations concedes that its past history and that of the family generally in previous businesses does not assist in satisfying a regulatory authority that the Applicant is ‘not unfit’ to hold the restricted goods vehicle operator’s licence applied for. What is essentially being pleaded is that despite this accepted history Mrs Sullivan can now trusted and given a ‘fresh start’ taking into account the following :
She acted on the advice of the transport consultant Mr Shaun Keaney for the last application and was not legally represented. She was uncomfortable with the ( untruthful) evidence she gave at the Inquiry before TC Rooney but was told by Mr Keaney that it was necessary to say this to obtain the licence. She regrets her dishonesty;
She has taken legal advice in making this new application and is committed to being totally open and honest in giving evidence this time and in future. She pleads for a ‘fresh start’ to demonstrate that she can be trusted ;
The creditors’ voluntary liquidation of Pro Services Group Limited has been declared on this application together with the revocation of the operator’s licence last held by that company;
She has dispensed with the services of Mr Keaney and has taken on the services of another transport manager CPC qualified consultant, Mr Andrew Horseman. Comprehensive evidence of systems and records to be used to comply with licence undertakings has been produced in support of the application;
She has completed an operator licence awareness training course since the last application (on 29 May 2024);
The financial requirements for the application have been satisfied;
She has impressed upon her husband Daniel Sullivan that he is to have no connection with the road transport activities of the business, and, to that extent, Mrs Sullivan’s decision as sole director is final in respect of any transport related decisions regarding the scaffolding functions of the company;
She presently shares responsibility as a person with significant control of the Applicant through shareholdings with her husband Daniel Sullivan, although she is the sole director. To ensure her future role is not compromised by the joint shareholding it is proposed to change the shareholding, so she is the sole person with significant control.
Given the concerns considered at the previous Inquiry regarding the use of vehicles specified against the licence of Pro Services Group Limited before and since its entering creditors’ voluntary liquidation in February 2024, I asked Mrs Sullivan about the 4 vehicles that had apparently been transferred to the Applicant from Pro Services Group Limited prior to the insolvency proceedings. Mrs Sullivan explained that 2 of those vehicles remained in the possession of the Applicant, parked at the proposed operating centre. The others, she explained had been disposed of. On my further examination, she admitted that the two retained vehicles had been moved and used by the scaffolding business without an operator’s licence, under the instructions of her husband, contrary (she said) to her advice and directions to him. She expressed some frustration as she could not see how she could avoid this as she arrived at the yard after the scaffolders started work. I suggested that she could have kept control of the vehicles’ keys, and she responded promising to do this straight away. She openly admitted that when she went to the yard on the morning of the Inquiry a vehicle was not parked in the yard.
Operator licence records and DVLA registered keeper data show that four of the vehicles previously specified on the Pro Services Group Limited operator’s licence and registered to it were transferred to the Applicant, three of these prior to Pro Services Group Limited entering into creditors voluntary liquidation on 19 February 2024 and the other shortly thereafter, and that two of these vehicles were disposed of by the Applicant in March 2024.
PO14 NLC- acquired by the Applicant on 17 November 2023 and disposed of on 9 March 2024
MK62 AHK- acquired by the Applicant on 17 November 2023 and disposed of on 14 March 2024
NK15 0EE- acquired by the Applicant on 1 February 2024 and still registered to the Applicant
NK15 0ED- acquired by the Applicant on 1 March 2024 and still registered to the Applicant.
Despite the comments made by Traffic Commissioner Kevin Rooney in the Written Decision no evidence was given for the Applicant concerning the terms on which the vehicles were transferred out of Pro Services Group Limited to the Applicant and the use of those vehicles by the Applicant from that time until the insolvency proceedings commenced on 19 February 2024 and the revocation of the Pro Services Group Licence with effect from 5 March 2024.
As found above two of the four vehicles were disposed of by the Applicant shortly after the insolvency proceedings and the revocation of the Pro Services Group Licence. The Applicant remains to satisfy me that the transfer to it of the four vehicles out of Pro Services Group was lawful , transparent and ethical at the time the transfers were completed and that the Applicant did not thereafter use all or any of the four vehicles in its business without an operator’s licence in its own name to authorise that use.
The ANPR data reported for the 2 vehicles retained by the business for the period 23 April 2024 to 6 November 2024 reveals the following combined number of sightings of the two vehicles during the period as recorded on the DVSA BOF and the NAS databases:
NK15 0ED- 1012 ( in continuous recorded use with sightings in each of the calendar months within the period)
NK15 0EE- 194 ( in recorded use with sightings in 3 of the calendar months within the period).
In addition to the two retained vehicles the Applicant disclosed a third vehicle VRM FJ15 UNL an 18,000 kgs vehicle which Mrs Sullivan recalls was purchased using one of the disposed vehicles in part exchange. This vehicle has not been subject to an ANPR or registered keeper check, but from the evidence of Mrs Sullivan has also been in use as it may be more appropriate for certain work over the other 2 vehicles which are each 26,000 kgs.
The Applicant submits to me that Mrs Sullivan did not authorise this unlawful use of the vehicles and repeatedly warned her husband of the consequences of the unauthorised use. It is submitted in response to the ANPR data and the DVSA encounter of 7 November that the vehicles were used without her permission or knowledge and she experienced difficulties in her attempts to prevent the vehicles being driven without an operator’s licence. When arriving to work she would find that vehicles had been driven out of the yard for business purposes despite her warnings of the consequences of continued non-compliance. The use was unlawfully carried out by those involved in the scaffolding part of the business, which is managed by her husband Mr Daniel Sullivan. In the response letter of 25 November 2024, it is accepted that Mrs Sullivan had not locked away the keys by the day before the Inquiry. As a vehicle was not parked at the proposed operating centre on the day of the Inquiry ( per Mrs Sullivan) and as one of the vehicles was encountered by the TE on the following day, it appears that even by that time she had failed to secure the vehicles, and the unauthorised use had continued.
I find that the substantial extent of the vehicles’ movements shown by the ANPR data is such that Mrs Sullivan must be considered to be complicit in the continued unauthorised operations or ,at best ,unable to control the acts of her husband despite her role as the sole director and shareholder In the circumstances I am not satisfied that an undertaking promising his lack of involvement in the transport activities under the licence if granted is meaningful.
Unlawful operation of large goods vehicles outside of the operator licence regime (including the exemptions permitted in the regime) is illegal. Illegal operations undermine the purposes of operator licence regulation to ensure vehicles are operated in a safe condition and not anti-competitively with compliant operators. There is a serious risk and concern that any user operating illegally for the purposes of operator licensing, and prepared to lie to the enforcement authorities, is prepared to ‘cut corners’ in many other ways. The encounter of 7 November 2020 only serves to substantiate such concerns with the vehicle in use having been without an annual test certificate since May 2024. In addition, the driver was committing an offence in having 2 driver digital tachograph cards. The TE was concerned that a full record of all driving was not being kept using a driver’s card when the vehicles was in use.
I have reminded myself of the provisions of Senior Traffic Commissioner Statutory Document (‘STC SD’) numbered 1 on Good repute and fitness, including the Upper Tribunal decision referred to in the case of Aspey Trucks Ltd (2010/49). That case makes clear the role of the Traffic Commissioner as “the gatekeeper” to the haulage industry, when considering new applications. Those who are allowed entry must satisfy the Traffic Commissioner of their good repute. [I find also applicable to fitness in the Applicant’s case]. In answering that question, whether I am so satisfied in respect of this application, I need to be alert to what the public, other operators, and customers and competitors alike would expect of those permitted to join the industry that they will not blemish or undermine its good name or abuse the privileges it bestows.
The combined picture in this instance is I find of an Applicant that has demonstrated a material disregard of the law concerning the operation of large goods vehicles. In this case the unlawful operation is aggravated by the blatant continued nature of it ,as well as the ignoring of other law relevant to ensuring vehicles used are roadworthy and driven safely apparent from the DVSA encounter of 7 November 2024,and the extended period over which it has taken place. Mrs Sullivan has failed to satisfy me that she is not implicated in the previous extensive unlawful operation of large goods vehicles by the Applicant which continued on the date of Inquiry and indeed the day following. Mrs Sullivan as the sole director and joint shareholder of the Applicant company is legally responsible for the Applicant’s non-compliant activities.
Whilst I give some credit to Mrs Sullivan for:
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finally admitting that she was untruthful when giving evidence to the Traffic Commissioner at the Inquiry in April (and again in providing the post Inquiry evidence required by him);
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completing operator licence awareness training since the last application ;
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the compliance systems and professional support put in place for the licence applied for
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her promise to invoke the company’s disciplinary procedure for all those involved in the unlawful operations;
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her offer of an independent audit to demonstrate compliance if the licence is granted,
I do not find that this is anything like enough to counterbalance the significant risk associated with her acting as the guiding mind behind the Applicant as its sole director and shareholder given her dishonesty with the Traffic Commissioner at Inquiry which was continued when documents were submitted after the Inquiry, the transfer of vehicles out of Pro Services Group Limited ( now in liquidation) to the Applicant the basis and terms of which remain to be evidenced to satisfy me that the transfers were lawful and ethical ,and the serious unlawful activities of the Applicant in operating vehicles unlawfully over many months with her knowledge and ultimately for the financial gain of her and her husband.
The Applicant has failed to demonstrate to my satisfaction that it can be trusted with entry into the industry and is not unfit - to hold the restricted licence applied for, even for a single vehicle.
The Deputy Traffic Commissioner for Western England decided:
- The Applicant has failed to satisfy me that it is ‘not unfit’ to be the holder of a restricted goods vehicle operator’s licence. The application is REFUSED under section 13B of the Act.
Fiona A Harrington, LL.B (Hons.), Solicitor
Deputy Traffic Commissioner for the West of England
14 December 2024