0.1 IN THE SCOTTISH TRAFFIC AREA
0.2 JAMES THOMAS FLYNN
0.3 t/a HAPPY DAYS MINIBUS HIRE FALKIRK (COACHES) – PM2046900
1. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION
2. Background
James Thomas Flynn seeks a Standard National Public Service Vehicle Operator’s Licence authorising 2 vehicles. He has nominated Rodney Campbell to act as Transport Manager (CPC at page 27).
There is one proposed Operating Centre at. Outside Inns, Bellsdyke Road, Larbert FK5 4EG. It is proposed that Allan Bruce Mobile Coach Tech, undertake Preventative Maintenance Inspection of the vehicles at 6-weekly intervals. Most recently I received a contract suggesting the involvement of DM Commercials.
Mr Campbell proposes to devote 4 hours a week, each Wednesday (page 23). He currently has the following additional responsibilities:
* committing 4 hours per week as Transport Manager for AB Transfer Ltd in Peterhead (PM2032941 – 4 vehicles)
committing 8 hours per week as Transport Manager for Adrenalin Uplift Ltd in Innerleithen (PM2008235 – 7 vehicles)
committing 4 hours per week as Transport Manager for Muhammed Tayyab in Huddersfield (PB2044201 – 4 vehicles).
His statement at page 33 suggests that this requires 44 to 45 hours of his time, per week. At page 35 he has supplied a one-page description of his general duties, apparently by reference to the headings published by the Office of the Traffic Commissioner.
The applicant previously held PM2003563 with an authorisation of 2 vehicles from October 2017. He was called to Public Inquiry on 6 November 2019 (pages 72 to 80) following an unsatisfactory maintenance investigation and to consider an application to change Operating Centre. The Deputy Traffic Commissioner was apparently persuaded to accept an undertaking for a finance review and Transport Manager refresher and to issue a warning to the operator and the then Transport Manager, Robert Fraser A formal warning was issued to the operator as well as a finance undertaking. Neither of the decision letters records the formal findings, but the call up letter summarises the Examiner’s findings: lack of brake testing, no tyre management systems, unaware of the requirement to complete and retain maintenance records for a period of 15 months (YC18 BYK not retained), wheel loss incident and not reported, weaknesses in the driver defect reporting system and notably that drivers were unable to examine wheel fixings on YN09 HZJ due to the wheel coverings.
Mr Fraser subsequently resigned in August 2020. The operator was granted a Period of Grace of 4 months to rectify the absence of a Transport Manager. Mr Flynn was granted an extension after he failed to gain a Certificate of Professional Competence himself. He then nominated James Reilly but there were issues with obtaining information about how the statutory duty would be met.
The applicant was therefore called to a further Public Inquiry on 26 June 2021 (pages 81 to 100) before my colleague, Ms Gilmore. Applications to appoint James Reilly and Rodney Campbell as replacement Transport Manager were refused. Mr Reilly and Mr Campbell failed to attend. The operator’s licence was revoked. The written confirmation records that the operator had been without professional competence since August 2020, there was a lack of urgency to address this, and that there had been limited contact between the operator and Mr Reilly (who was described at this hearing as a family friend who had let the operator down), reference was made to the use of self-employed drivers. The applicant then attempted to appeal against that decision to the Upper Tribunal (pages 101 to 138). That misguided appeal was eventually struck out by the Upper Tribunal on 18 August 2021.
3. Hearing
The Public Inquiry was listed for 2 November 2021, in the Tribunal Room 1 of the Office of the Traffic Commissioner in Edinburgh. The applicant, James Flynn, was present, accompanied by Mr Campbell and represented by Eliot Willis, a solicitor.
4. Issues
The public inquiry was called to allow the applicant further opportunity to satisfy me that the statutory criteria are met and specifically by reference to the following sections of the Public Passenger Vehicles Act 19815:
14ZA(a) – stable and effective establishment and by reference to a suitable Operating Centre
14ZA(2)(b) – good repute
14ZA(2)(c) – financial standing
14ZA(2)(d) – professional competence by reference to a reputable holder of a Certificate of Professional Competence, who can exercise continuous and effective management, by reference to:
14ZC(1)(a) – satisfactory facilities and arrangements for maintaining the vehicles in a fit and roadworthy condition:
14ZC(1)(b) – satisfactory arrangements to comply with the law regarding the driving and operation of vehicles.
The applicant was directed to lodge evidence in support by no later than 26 October 2021, to include financial, maintenance and other compliance documentation. The financial evidence submitted during the processing of the application was apparently redacted for some reason, at page 71.
Mr Willis subsequently lodged documentation on behalf of his client in advance of the hearing, including evidence to suggest a booking for Mr Flynn to attend OLAT on 28 October 2021, a Certificate of Professional Competence dated 27 April 2020 for the nominated Transport Manager, a contract for the same with ‘itinerary’, a proposed employment contract for drivers, an additional contract with DM Commercials, forward planner pro-forma, proposed driver defect reporting sheet (Weekly Walk Round Report), proposed Preventative Maintenance Inspection record produced by Tachodisc.
Bank Statements covering the period 27 August to 28 September 2021 and evidence of an overdraft facility have been supplied. Taken together, the average would appear to exceed the prescribed sum of £12,500, but those statement disclose no payments to Mr Campbell to date. I was told that the first payment was made in October 2021.
Following the hearing where it became evident that the applicant was not able to meet the statutory tests, I allowed a short period of 14 days to lodge additional material. Inevitably the need to republish the revised application and now Operating Centre details has further delayed the production of this decision.
## Determination
Following Mr Campbell’s failure to attend the previous Public Inquiry, I was anxious to ensure that there was a genuine link with this gentleman. The applicant purported to speak for him during the misguided appeal, but the Upper Tribunal found this not to be the case. I have noted the documents at pages 33 to 34, and 35. In evidence I was assured that Mr Campbell would be invoicing the applicant in a personal capacity with monies paid to Mr Campbell. I was unimpressed to find that an introduction fee had been paid to a Mr Nade. Mr Campbell confirmed his understanding that Mr Nade had recently lost his repute as a Transport Manager. I infer that this Mr Nade is in the person disqualified from relying on his Certificate of Professional Competence at a Public Inquiry on 28 July 2021. I was even less impressed to find that at the date of the previous Public Inquiry, Mr Campbell had yet to meet the applicant and then only established contact two days after the hearing. This fact does not appear to have been disclosed to the Traffic Commissioner or the Upper Tribunal. It has been made very clear to Mr Campbell, as it should be to all responsible holders of Certificate of Professional Competence, he should not have allowed his name to be used in this way and without having first met with and assessed the applicant/operator.
Mr Campbell described a degree of fluidity in his diary, with the intention of visiting the applicant on a weekly basis for a couple of hours, with an additional monthly meeting to discuss wider compliance and to look at the vehicle. The visits will take place at the proposed Operating Centre and at the applicant’s office (at his home), illustrating some of the drawbacks associated with the proposed site. Mr Campbell referred to the ability to view documents on-line through Cloud based storage. He explained that the weekly driver defect record is an example of what might be printed out from the proposed driver reporting app. I was assured in evidence that the software allows for multiple defects to be reported in a day and that with each defect reported an email would then be sent to Mr Campbell to monitor and give instructions.
It became evident that, despite having been introduced just after the last Public Inquiry, Mr Campbell was still unclear about aspects of the proposed operation. I was assured that operations had yet to commence. Mr Campbell suggested that quarterly driver licence checks might be required in law but had not checked the driver contracts to see it that might facilitate access to an individual driver’s record via the DVLA website. He had spoken to a representative of DM Commercials and was satisfied that the contractor has all the required facilities. He had yet to have any contact with Allan Bruce but understood that he was a mobile fitter who relies on facilities at Dewars Coaches. This is not reflected in any of the contractual agreements submitted to date. I remained to be satisfied that this arrangement would meet section 14ZC(1)(a). I referred to the previous adverse comments by the Driver and Vehicle Standards Agency and referred to the Guide to Maintaining Roadworthiness, Section 5.3 of the guide provides:
As per the annual test, every safety inspection must assess the braking performance of the vehicle or trailer. It is strongly advised that a calibrated roller brake tester (RBT) is used at each safety inspection to measure individual brake performance and overall braking efficiencies for the vehicle or trailer to the annual test standards. However, it is also acceptable to use an approved and calibrated decelerometer to measure overall brake efficiency values for vehicles without trailers. In the case of trailers, an Electronic Braking Performance Monitoring System (EBPMS) may be used as a means to assess trailer-braking performance and provide a brake performance value while the vehicle is in service (for further details see EBPMS section). Brake testing should be undertaken with the vehicle or trailer in a laden condition in order to achieve the most meaningful results; however, due to basic design limitations or restriction caused by the type of cargo normally carried, this is sometimes not possible. Further guidance regarding the use of RBT’s can be found at this link: www.gov.uk/government/publications/the-heavy-vehicle-braketest-best-practice-guide
I was unclear as to what the applicant and proposed Transport Manager were suggesting as the evidence changed to give primacy to DM Commercials. The applicant was given additional time to clarify its maintenance arrangements. I was concerned to note that undertakings give at the Public Inquiry in 2019 regarding tyre management and retorquing were not specified in that decision. I was also concerned to understand how driver defects might be reported. The applicant was asked to supply a proposed Preventative Maintenance Inspection sheet for DM Commercials.
The application disclosed the proposed operation of two vehicles: a Mercedes sprinter – YN09 HZJ, and an Iveco daily – PL54 UUA. These vehicles can be seen variously represented in the photographs from pages 28 to 32. The note provided by the applicant (page 46) confirms that the proposed Operating Centre is a hotel car park. It suggests that the vehicles are already in operation: “when the buses are out for work the space is replaced with a vehicle to keep the space”. This further suggests that the spaces are not reserved and that vehicles then must be moved around a public car park in order to park up.
The photographs show that the address of the proposed site on the record and which has been published, may be deficient as it fails to refer to “The Bruce” hotel. Further correspondence referred to the applicant having secured 4 parking bays due to the length of the minibuses, but also accepts that the vehicles are too wide. The photograph at page 32 caused me particular concern as it shows the two vehicles parked together, with no room to conduct a driver walk round check. The photograph suggests that the length of the vehicles causes them to overhang into spaces in front and PL54 UUA is clearly too wide to fit into the proposed bay.
I was surprised that the applicant had chosen this site to operate from as there appeared to be insufficient capacity to comply with the requirements of an operator’s licence, including a walk round check. It is a matter of judicial knowledge and public information that DVSA test facilities must be at least 2 metres wider than the vehicles to be tested, to ensure that there is at least 1 metre free space on either side of the vehicle when the vehicle is being inspected. The photograph on page 31 illustrates some of the components which might need to be checked and accessed. A driver walk-round requires space to crouch down to check tyres or to step back to check the top of the body. I was therefore interested to hear what the proposed Transport Manager had to say about the selection of this site. He last visited two days after the Public Inquiry when the Traffic Commissioner revoked the previous licence. I was told about a previous compound which had been used but when that became unavailable the Deputy Traffic Commissioner apparently allowed the applicant authority to operate from this proposed site. The relevance to my consideration of sections 14ZC(1)(a) and (b) was carefully explained to the applicant. Mr Campbell suggested that consideration had already been given to securing an alternative.
The inherent risk to safety from trying to inspect a vehicle in a publicly available car park did not appear to have occurred to either applicant or Mr Campbell. The applicant was unable to explain how this was consistent with his general duties under the Health and Safety at Work etc. Act 1974. It appeared to dawn on him that this might potentially impact on the quality of the driver walk round. The position was not assisted by suggestions of a different configuration within the four bays identified. As the photographs illustrate, there is simply insufficient room and there was nothing preventing other vehicles from being parked up against the vehicles to be operated, preventing any qualitative walk round at all. It was suggested that the application might be reduced to seek authority for one vehicle only, but it then became clear that one of the vehicles in the photographs cannot be moved. It needs to be taken to a repair facility to be returned to roadworthiness, with the intention that it be sold. However, the vehicle is still subject to financing, raising new questions about financial standing.
It was necessary to remind the applicant that the legal onus lies with him to satisfy me that the statutory criteria are met, regardless of family circumstances. The grounds of appeal and particularly at page 155 suggest confusion as to where the onus lies in an application. The applicant must satisfy a traffic commissioner to the civil, standard of proof – i.e., it is more likely than not, that the tests have been met. For the above reasons I was prompted to ask what action the applicant had taken to better equip him to meet the obligations on a licence, for instance following the concerns expressed by DVSA in 2019. As the Upper Tribunal has suggested in cases such as 2013/082 Arnold Transport Ltd, fitness of those in control, can be an essential element in determining repute. I was also keen to understand why the applicant had thought that it was appropriate to appeal the inevitable consequences following the loss of a mandatory requirement. As I explained, this goes to my assessment of the applicant’s fitness.
As indicated, the applicant was allowed a final 14 days to confirm the basis of his application. He cannot complain that he has not been given ample opportunity to pursue this application since the last Public Inquiry. At the close of the hearing I made clear that I remained to be satisfied as to section 14ZA(a) and the suitability of the Operating Centre, 14ZA(2)(b) due to questions around the fitness of the applicant, 14ZA(2)(c) arising from questions about the authority on the impact of the second vehicle, 14ZA(2)(d) as Mr Campbell’s availability needed to be clarified, all going to sections 14ZC(1)(a) and (b).
Accordingly, I was provided with a further statement from Mr Campbell. He explains something of his background and refers to his efforts to obtain his Certificate of Professional Competence. He acknowledges a failure to keep the Traffic Commissioner updated of changes in his commitments. His comments reflect a lack of appreciation of the condition ion any licence. There can be no further ignorance in that regard. He refers to his recent attendance at Operator Licence Awareness Training (OLAT) in September 2021 and has “learned a few more ways and places in which I can keep up to date with regulations and my plan is to use this as and when required”. The applicant, Mr Flynn attended himself on 28 October 2021 and has indicated the intention to join the Confederation of Passenger Transport. I have treated the following as formal statements of intent:
Systems to be used for an operator
A. Tachograph use. Tachomaster – This will enable me to download any vehicle unit, or scan any disc into an account that the operator currently has. This system is very informative and help-full and easily points out any discrepancy within a drivers and vehicles movements. This system will also be used to run and file a series of monthly reports covering drivers’ hours and law and regulation compliance, any operator wishes to be legal and be compliant and Tachomaster is a great and very valuable tool.
B. Drivers hours. The preferred way is to monitor previous weeks along with future weekly and monthly work plans in order to make sure there is adequate drivers available for work planned. The drivers’ hours will be monitored for consistency and legal driving hours as well as monitoring the type and style of driving. (Drivers can break the law in many ways and not just by speeding) Things to monitor would include – breaks and rest periods – driving daily time periods / any split shifts.
C. Infringements. The use of the Tachomaster system will automatically bring up infringements and these will be addressed by myself and the operator. There is a section within a daily run in this system to make a text note of and points and reasons for the event, the system also has inbuilt infringement letters that when printed out are very informative and are to be signed by the transport manager and driver as well as not only being dealt with by operator and transport manager the operator will also co-sign as a witness for records and all parties will get a copy. These occurrences will not only be monitored and used to gain some training for the driver but will be monitored for future events.
D. Daily walk round checks. We plan to use the tachotek small book for these and these will be recorded, and any defects noted and progressed on a monthly vehicle use report that will show all details of the defect as well as future planning in order to rectify any forth coming vehicle problem or 001 maintenance issue so as replace and monitor use. (An example would be like replacing a bulb in one headlight more than the other might turn out to be a simple wiring fault or a defective unit) drivers would be approached at regular intervals to check these are carried out properly and any finding correctly noted and repaired.
E. Driver inductions. We have a driver induction form to be used and it contains the following subjects which will be carried out not only when a driver starts with Happy Days but also during regular periodic checks so as to maintain a professional level of awareness to the position as well as to the legal conditions of holding a PSV driving licence. This form covers the following, – Drivers handbook, – driving licence check and any validation required, – the company health and safety and site safety policy, – an eyesight test, – vehicle walk round checks and defect reporting system use by the company, – Personal security for belongings and also for driver wellbeing, – any route planning required ( a general knowledge sample of questions about the operational area, roads, speed limits, weight concerns ), – the companies accident procedure, – location of fire extinguishers ( on site, vehicle ), – vehicle breakdown procedure, – Manual handling and awareness issues as the company from time to time will be loading luggage, – Driving assessment for new drivers and also periodically so as to monitor drivers habits, – we also will be including a few questions on the highway code and vehicle safety and secure parking.
F. Road safety. With constant changes within the transport industry road safety will always be a great concern to a PSV operating company. We have and will make available to all drivers and staff, the bus and coach road safety handbook. This not only outlines the overall safety of vehicles and drivers it included guidelines of the road safety charter. Our main concerns in road safety start with the drivers’ hours and rest, controls or any limits implemented on the drivers, driver training. We also keep ourselves both independently as an operator and a transport manager as well as a company, updated as to any regulation or updates to the likes of the guide to maintaining road worthiness.
G. Maintenance/Operating Centre. The operator and myself have visited the chosen commercial vehicle maintenance provider and have had a walk around the site. The owners and operators of the company, Michele and Darren at DM Commercials, they have a great secure site at West mains industrial estate in Grangemouth. Myself and James the operator visited the site on Thursday 4th Nov in the afternoon for a look at the facilities. The facilities include full maintenance and testing calibrated equipment with 5 ton rolling road for brake tests. Access to this site and test area is more than adequate with a spacious turning area, the site is gated and locked when not in use and has 24he CCTV, access is from within an industrial estate so no direct entry or exit to a main road with no access for general public vehicles so all entry and exit to site will be able to be made in first gear. James and myself are more than satisfied with the procedures and arrangements this provider has in effect and we both are confident this company will keep our vehicles fit and serviceable.
H. Discipline drivers’ policy. In order to have a procedure for the discipline of any staff or driver we require a form of written safety rules that we at Happy Days operate with. These rules will be made available to new drivers at their induction, as well as to any driver or staff that wish them. It will include: – consequences for violating safety rules – moving violations – driving hours regulations – a fair way of preventing vehicle accidents (driver and people awareness) – regular monitoring of vehicle use – means of supervising drivers on the road.
I have noted the change in proposed maintenance contractor. The applicant and Mr Campbell have now visited one of the external maintenance providers and confirm
facilities including full maintenance and calibrated brake performance testing. DM Commercials Ltd will carry out the regular safety inspections and roller brake tests on vehicle YN09 HZJ (the Mercedes). Scania Grangemouth will provide safety inspections of the Iveco PL54 UUA. The applicant has undertaken to lodge contracts and for roller brake testing at every Preventative Maintenance Inspections.
Mr Campbell describes the intention of the applicant for the business to succeed “within the legalities of having an operational licence for passenger transport and we both agree that this will be the way forward”. That is reflected in the markedly different proposals put forward through Mr Willis. In addition to weekly visits, Mr Campbell intends to maintain regular contact by email and telephone. He will undertake all the downloads and analyse the driver and vehicles data to ensure legal compliance. Reports will be filed monthly. A genuine link and payments have now been demonstrated. That must be maintained
The applicant was challenged about the proposals to rely on a driver walk- round app, in the absence of a suitable Operating Centre and other arrangements. Pending resolution, the applicant has reverted to using Tachopak books and a Nil driver defect reporting system. This will allow Mr Campbell opportunity to audit and cross check against Preventative Maintenance Inspection records. Where defects are encountered during the day, a further endorsement will be made using capital letters and a carbon copy for duplication.
The new proposed site is at DM Commercials Ltd, Unit D, Scottish Board Centre, West Mains Industrial Estate, Grangemouth, FK3 8YE. I have seen a letter of authority and sales invoice. The applicant has secured an area of the site for 2 vehicles. The applicant has exclusive use of allocated the bays, which will coned and marked off when the vehicles are not parked there. Signs will indicate the registration of the vehicle to be parked in the relevant bay. The licensing team has processed this application and confirmed capacity to meet the technical requirements of an Operator’s Licence. Mr Willis helpfully refers me to the dimensions: 10m wide by 10m long compared to the vehicle widths of 2.1metres, and 2.4m, allowing sufficient room to conduct a proper walk round check. Mr Campbell has now seen the proposed site.
The applicant has now made arrangements for the repair of YN09 HZJ, which was a concern at the hearing. Recognising that financial standing is a mandatory and ongoing requirement, the applicant has offered to submit to a financial review. In addition, the applicant has offered an undertaking for roller brake testing at every inspection.
It is suggested that the has not been involved in a deliberate attempt to mislead or gain an unfair commercial advantage. That is not the evidence I was given at the hearing. Mr Flynn was candid about his motives in seeking to pursue a hopeless appeal, where he failed to disclose that he had not even met the CPC holder who was nominated to act. The nomination of the previous site does not speak well of either the applicant or Mr Campbell. This is indicative of the lack of involvement that Mr Campbell had in the production of systems, over which he was proposed to have effective management. There is a lesson here for all applicants and CPC holders: o guard against the risks of allowing third parties to assume the responsibility for pursuing an application and allowing your name to be attached to an application, where you have not even met the applicant/operator.
The years of experience referred to in submissions, were not sufficient to prevent the errors described above. It is the appearance before the Traffic Commissioner at the previous Public Inquiry and now in pursuit of this application, which appear to have provided the real instruction. That and the attendance at training mean that there can be no excuse for non-compliance going forward. Mr Flynn and Mr Campbell at warned to that effect. I view their respective reputes as tarnished by the circumstances summarised above. With that warning I will allow the grant of this application, with an authority to operate two vehicles from Unit D, Scottish Board Centre, West Mains Industrial Estate, Grangemouth, FK3 8YE. The notified contractors are DM Commercials Ltd and Scania Grangemouth. The licence is granted subject with a condition for a finance review within 6 months of grant, where the up to date 3-month average must meet the prescribed sum, and an undertaking for roller brake testing of the vehicles at every Preventative Maintenance Inspection.
Richard Turfitt
Traffic Commissioner
5/12/21
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