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NORTH EASTERN TRAFFIC AREA
Reasons of the Traffic Commissioner
Public Inquiry in Leeds, 10 December 2014
RICHARD PETER WASTENEY t/a NORTHER SPIRIT COACHES
Conjoined with a hearing to consider:
CONSORTIUM A – Section 19 permit holder
RICHARD WASTENEY CIC – Section 19 permit application
DECISION
Under Section 20 of the Transport Act 1985, the permits granted to “Consortium A” are revoked with immediate effect
Under Section 19 of the Transport Act 1985, the application for permits by Richard Wasteney CIC is refused
I issue a formal warning to the licence holder in relation to the failure to ensure compliance
Undertakings are recorded
BACKGROUND
1. Richard Wasteney holds a standard national licence authorising the use of ten vehicles; three vehicles are recorded as being in possession. Consortium A is the holder of four permits issued on 6 June 2013 under Section 19 of the Transport Act 1985. Richard Wasteney CIC made an application on 14 March 2014 for two Section 19 permits.
2. A vehicle belonging to Mr Wasteney and displaying an operator’s licence disc in his name was subject to a roadside check on 7 December 2013 at Birch Services on the M62. The vehicle was laden with passengers on a trip to Blackpool. Traffic Examiner Christine Finnegan found that the driver, Craig Andrew Watts, was not the holder of a driver qualification card and driver Watts accepted during interview that he had not undertaken any driver CPC training. This led to a follow-up investigation by Traffic Examiner Ann Greenwood.
3. TE Greenwood attended Mr Wasteney’s operating centre on 17 January 2014 and conducted a further interview on 27 February 2014. It emerged during the course of those interviews that Mr Wasteney undertook a mix of private hire and school contracts. The school contracts were done using the permits. Mr Watts was a casual driver used on the school contract. Mr Wasteney’s view was that he therefore did not need a driver CPC. Mr Wasteney contended that Mr Watts was using the vehicle for his personal use on 7 December 2013 when he was encountered by TE Finnigan so, again, a CPC was not required.
4. TE Greenwood was rightly concerned at the use of permits and a standard national licence within the same entity. Further investigation identified that the permits referred to by Mr Wasteney were issued to a body called “Consortium A” at his address and in response to an application completed by Mr Wasteney. Mr Wasteney confirmed that the work was all accounted for through a single set of accounts without differentiation. Hull City Council confirmed that contracts had been won by Richard Wasteney “under Consortium A”.
5. The matters were referred to me and Mr Wasteney attended a public inquiry today in relation to his standard national operator’s licence, and a conjoined hearing to deal with the concerns relating to the existing permits and a permit application by a new Community Interest Company. Traffic Examiner Greenwood and PSV Policy Manager Marion Sheppard attended for DVSA.
FINDINGS
6. Consortium A is not a separate legal entity. It is, in fact, a group of four operators in the Hull area who agreed to submit joint bids for school contracts in Hull following the council’s move to let fewer, larger contracts. The vehicles used under the permits issued to Consortium A are being used on a contract that was tendered for commercially in competition with other licensed operators. There is no voluntary element. The work is accounted for through Mr Wasteney’s sole trader accounts with no separation.
7. From my finding that the vehicles were being operated commercially, it follows that the exemption from CPC at Article 2(f) of Directive 2003/59 “vehicles used for non-commercial carriage of passengers or goods, for personal use” does not apply. My finding here aligns with the purpose of that exemption, as set out in Recital 22 to the Directive, as being for circumstances where to comply “would impose a disproportionate economic or social burden”. The vehicles are in use permanently and an investment of one day each year in training the drivers can in no way be considered disproportionate. I contrast this with the position of, for example, a scout leader who may drive a vehicle only several times a year where such an investment could clearly be considered disproportionate.
8. Article 1(4)(b) of EU Regulation 1071/2009 on access to the occupation of road transport operator provides for an exemption for “undertakings engaged in road passenger transport services exclusively for non-commercial purposes…”. The vehicles are operated commercially and this exemption does not apply. I again support this finding by reference to the relevant recital which, though not forming part of the Regulation, sets out the intent “(6) In the interests of fair competition, the common rules governing the exercise of the occupation of road transport operator should apply as widely as possible to all undertakings. However, it is unnecessary to include within the scope of the Regulation undertakings which only perform transport operations with a very small impact on the transport market.” An operator’s licence is required.
9. The use of the vehicles under the permits issued to Consortium A was therefore unlawful on three counts, namely that the holder does not meet the criteria to hold such permits, the vehicles are used commercially and require to be operated under an operator’s licence and the drivers require to hold a CPC (I note that the driver has since acquired this qualification).
10. Richard Wasteney CIC is a community interest company set up with a view to a profit. The business is intended to operate commercially. As such, it does not qualify to hold a permit under Section 19.
11. In considering Mr Wasteney’s standard national licence, I note that driver Watts completed his CPC training in May this year. A new permit application was made in the name of Richard Wasteney CIC promptly after he was interviewed in relation to the issue of separating the accounting, albeit the new application cannot succeed. Mr Wasteney told me that he had not operated using the permits following the concerns coming to light. TE Greenwood found systems generally satisfactory, although the tachographs of driver Watts appeared to show infringements, that is likely to be private use. I am not aware of any significant maintenance issues.
12. I am concerned that a driver has free access to a vehicle for his own use and the tachograph records appear not to differentiate between private use and in-scope driving. I am generally concerned that driver Watts may be using the vehicle for hire or reward in his own right. That would seem to be the only explanation for his use on the day in December 2013 when he was stopped. I am further concerned that driver Watts keeps the vehicle on his drive rather than at the operating centre.
DECISIONS
13. Under Section 20 of the Transport Act 1985, the permits granted to “Consortium A” are revoked with immediate effect
14. Under Section 19 of the Transport Act 1985, the application for permits by Richard Wasteney CIC is refused
15. I issue a formal warning to Mr Wasteney as the holder of licence PB1011004 in relation to the failure to ensure compliance in relation to driver CPC, unauthorised use of an operating centre and shortcomings in tachograph analysis.
16. I make no adverse finding in relation to Mr Wasteney as a transport manager.
17. Undertakings are recorded as follows:
1. Mr Wasteney will write to the Office of the Traffic Commissioner by 17:00 hrs on 17 December 2014 setting out measures taken in relation to his driver and the unauthorised operating centre.
2. Mr Wasteney will undertake a 2-day transport manager refresher course offered by a trade association or an organisation accredited to deliver Transport Manager CPC training and send confirmation to the Office of the Traffic Commissioner no later than 30 April 2015.
Kevin Rooney
Traffic Commissioner, North Eastern Traffic Area
10 December 2014
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Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin
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