Neutral Citation Number: [2011] UKUT 132 (AAC)
Appeal No.  T/2010/85
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of P.K. Brown
Traffic Commissioner for the 
South Eastern & Metropolitan Traffic Area 
Dated 17 December 2010

Before:
Frances Burton, Judge of the Upper Tribunal
Patricia Steel, Member of the Upper Tribunal
David Yeomans, Member of the Upper Tribunal

Appellant:
			DANIEL PETER HILL
T/A FAIRSTEAD LODGE TRANSPORT

	 
Attendances:
For the Appellant:        Doug Sturman of Jireh Road Transport Specialist Services

Heard at:	Victory House
Date of hearing:	25 February 2011
Date of decision:	24 March 2011

DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be ALLOWED. The authorised vehicles will be curtailed to 16 from 1 April 2011 to 31 August 2011 subject to the further directions in paragraph 6 of the Tribunal’s Decision.

REASONS FOR DECISION

1.	This was an appeal against the Decision of the Traffic Commissioner for the South Eastern and Metropolitan Traffic Area dated 17 November 2010, when he curtailed the Appellant’s fleet from 20 to 14 vehicles with effect from 17 December 2010, directed the Appellant to nominate an additional Transport Manager to act alongside himself and to produce and forward to the office of the Traffic Commissioner by 31 March 2011 all tachograph records held for the period from 1 December 2010 to 28 February 2011.
2.	The factual background appears from the documents, the transcript of the public inquiry and the written Decisions of the Traffic Commissioner and is as follows.
(i)	The Appellant holds a standard national goods vehicle operator’s licence authorising the use of 20 vehicles and 20 trailers from an operating centre in Silverton, London E16. Allegations were made of drivers’ hours’ records being falsified and speed limiters being tampered with. As a result there was a VOSA investigation in October 2009. Analysis of 3 months’ records (July – September 2009 inclusive) revealed 171 drivers’ hours breaches by 17 of the Appellant’s 23 drivers, which included falsification of records. Routine roadside checks between September 2009 and April 2010 revealed additional breaches. However VOSA had not interviewed the operator or any of the drivers nor taken any of these matters to court. The Appellant was then called to public inquiry which took place at Eastbourne on 13 August 2010.
(ii)	At the public inquiry Traffic Examiner Harpal Nandra gave evidence for VOSA (accompanied by Mr S. Ali). The Appellant was represented by Mr D. Sturman of Jireh Road Transport Specialist Services. The Appellant and Mr Paul Conroy, the Appellant’s office manager, gave evidence. At the hearing the Appellant admitted that he too had been guilty of some breaches as a driver. However the Traffic Commissioner was told that all those drivers who had falsified charts had been dismissed and action had been taken by Mr Conroy to improve the systems to ensure future compliance of those remaining. Mr Conroy had been taken on to deal with these problems, and had been introduced to the Appellant by the Appellant’s brother. The current project for Mr Conroy, who had 25 years’ experience in the logistics industry, in particular in relation to change management, was to introduce an effective tachograph monitoring system so that compliance would be ensured.
(iii)	In the course of the public inquiry the Appellant had told the Traffic Commissioner that if the proposed sanction for the deficiencies was curtailment, he could probably manage with 16 vehicles instead of 20, but that any less would put the business into difficulties. In the event, the Traffic Commissioner recorded in his written Decision that he had been persuaded by Mr Sturman’s final address -  which was to the effect that the breaches (especially of those drivers not dismissed) did not fall into the “serious” category -  that he should draw back from finding that the Appellant had lost his repute. Mr Sturman had urged that the Appellant had done much to put matters right before the public inquiry, that maintenance was in order, and that Mr Conroy was so committed that he was going to take the CPC examinations himself, so as to act as a joint Transport Manager with the Appellant. Mr Sturman had submitted that the Appellant had temporarily “taken his eye off the ball”.
(iv)	In his Decision the Traffic Commissioner gave some credit for the Appellant’s being let down by staff to whom he had delegated, but categorised any leniency as “as much credit as I  could give”, because the Appellant had “placed his repute as near as it can be to being lost”. He then curtailed the fleet to 14 vehicles with effect from 17 December 2010, and made the other directions referred to in paragraph 1 above.
3.	At the hearing of the appeal the Appellant was again represented by Mr Sturman, and also attended personally. Mr Sturman submitted that the thrust of the appeal was that the curtailment to 14 vehicles (and this for an indefinite period) would ruin the business and all the systems that the Appellant and Mr Conroy had taken great pains to set up. His first ground of appeal was that the Traffic Commissioner had not given sufficient credit to the Appellant for the favourable impression of his trustworthiness and honesty which had been remarked upon by the Deputy Traffic Commissioner at the previous public inquiry at which the Appellant had appeared.  This had been on 9 December 2008. Mr Sturman had drawn this matter to the Traffic Commissioner’s attention at the public inquiry of August 2010, having requested the Traffic Commissioner to listen to the last 20 minutes of that PI, where the DTC had given an oral judgment favourable to the Appellant.  However he did not know whether the Traffic Commissioner had done this. He particularly wanted the Traffic Commissioner to hear the part where the DTC could be heard commenting “here is an operator who has done exactly what he said”, but said that he could not tell whether the Traffic Commissioner had even listened to any of the tape as he did not refer to it in his Decision (which was quite short). In the circumstances Mr Sturman had had the transcript of those final 20 minutes of the previous PI printed out and had made hard copy versions available to us.
4.	Mr Sturman’s second ground of appeal was that the Traffic Commissioner had failed to give the Appellant adequate credit for the improvements he had made, with the aid of Mr Conroy, and which had been made before the public inquiry. He said that the Appellant had been telling the truth when he had said that he could not manage with less than 16 vehicles, and that a curtailment to 14 would so much reduce profit that it would put both Mr Conroy’s job and that of the latest fitter engaged into jeopardy. The Appellant had also invested in new tracking equipment and computer systems. A fleet of 14 would mean the loss of expensive new tracking equipment fitted in those vehicles that would have to be disposed of and drivers would, of course, lose their jobs. He said the stark fact was the overheads would remain static but there would be a 30% drop in profits so that the business might not even be viable. He reminded us that Mr Conway was doing his CPC and would be taking his CPC examination “in a week”. Altogether, Mr Sturman urged us to consider whether some other action could be taken and to substitute our own decision as he feared that if a variation application had to be made to get the curtailed vehicles back onto the fleet after an indefinite period of curtailment there would be delay in achieving this which the business might not survive. He submitted this result was entirely disproportionate in all the circumstances.
5.	Mr Hill, who had accompanied Mr Sturman, confirmed that he had now installed the tracker system in every vehicle so that he could now track the vehicles’ whereabouts 24 hours a day. While we pointed out that we could not accept new evidence that was not before the Traffic Commissioner, he told us that this had all been in process before the PI, but that he had had to work through the fleet as cash flow permitted since the tracking system had cost £20,000 and ongoing monthly air time of £700. He said he would really struggle to pay Mr Conroy and the third fitter on the profits from only 14 vehicles. He added that his haulage was in the bulk tanker food and beverage business and that he had struggled to find good well trained drivers.  The result was that he had had to employ a high percentage of agency drivers. He explained that without the trackers he had found it difficult to control the drivers as they had to retain the tacho discs for 28 days.  By the time discs were analysed it could be 6 weeks before infringements were found. Mode switch infringements were common, but now as a result of fitting the vehicle tracking devices the drivers had “nowhere to hide”. We pointed out that none of this modern technology would be effective without good management and that 2009 had been a “disaster year” in his business. However he submitted that it had also been the year of his divorce. He appreciated that another 2009 could well be “curtains” for his operation, but now that the divorce was behind him, he lived near the yard, and knew he could get the drivers’ hours working perfectly, just as he had tackled the maintenance side successfully. He also now had no problems in seeing his child so that there were no distractions. He submitted he had reacted to the deficiencies as soon as he knew of them.
6.	We carefully considered the chronology and, having taken the history into account (which included the appointment of Mr Conroy in January 2010 and which had clearly had a significant impact on the business) we noted that the Appellant had taken other important steps, detailed in the evidence given to the Traffic Commissioner, before the PI.  It appeared that he had done this having realised there was a problem with the tachograph analysis in the business when he had interviewed the member of staff responsible for analysis at the time VOSA called for the 3 months’ discs in October 2009.  The employee had then left the business.  Following his own analysis of the tachographs he realised that there was a serious problem.  As a result he recruited Mr Conroy in December 2009 as a consultant, subsequently appointing him full time when the full extent of the problems had become obvious.  The tachograph discs were returned to the business in June 2009, with no reported problems.  This was followed by the call up letter in July 2010.
7.	We also reminded ourselves that the Traffic Commissioner had ordered 3 months’ worth of tachograph charts from December 2010 – February 2011 inclusive to be sent in by 31 March 2011. In the circumstances we are of the view that the appropriate disposal for this case is that the appeal should be allowed in part, i.e. that the fleet should be curtailed for a finite period of 4 months from 1 April 2011 to 31 August 2011 and that the curtailment should be from 20 vehicles to 16 for that period. We do consider that a curtailment to 14 is too severe in that it would clearly have a significantly adverse effect on the business and would put at risk the investment, both financially and in terms of Mr Conroy’s “know how”, that had at the date of the public inquiry already been expended in turning round a completely unsatisfactory situation. However, we consider that following VOSA’s analysis of the December 2010 – February 2011 charts, a further 3 months should be sent in covering the months of May to July and that these discs should be sent in by 31 August 2011 when the curtailment will come to an end. We are satisfied that there is no safety risk, as the Appellant has made no monetary gain from the driver breaches since they had clearly been caused by lack of driver control which he is now in a position to address. However if by 31 August 2011 there are still any problems in relation to drivers’ hours’ – or indeed in relation to any other operator’s  obligations - no doubt the Appellant realises that he is likely to be back at public inquiry within a very short time.

Frances Burton
	Judge of the Upper Tribunal
	24 March 2011