tcs written decision on timmins waste services ltd

8/9/2019 TCs Written Decision on Timmins Waste Services Ltd

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IN THE WEST MIDLAND TRAFFIC AREA

PUBLIC INQUIRY BEFORE

LESTER MADDRELLDEPUTY TRAFFIC COMMISSIONER

Goods Vehicle (Licensing of Operators) Act 1995 (“the Act”)Goods Vehicle (Licensing of Operators Regulations) 1995 (“the Regulations”)

Timmins Waste Services Ltd – OD1065857

Decision of the Deputy Traffic Commissioner

Decision

1. The standard national goods vehicle operators licence of Timmins Waste ServicesLtd is SUSPENDED for seven consecutive days commencing 00.01 hours on Saturday28 August 2010, under Section 26 (1) (c) (i); Section 26 (1) (c) (ii); Section 26 (1) (c)(iii); and Section 26 (1) (f) of the Act, with a direction under Section 26 (6) (a) that novehicle specified on this licence may be used under any other licence during the periodof suspension.2. Under the same legislation, the said licence is curtailed from 7 (seven) vehicles to 5(five) with 1 (one) trailer, with immediate effect.3. The repute of Neal Timmins as a Transport Manager and as an individual is

tarnished but not lost.4. The repute of Keith Duncan Lippitt as a Transport Manager is lost.5. The 8 (eight) undertakings set out in Annexe 2 are recorded on the licence forthwith,

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Background1. Timmins Waste Services Ltd (“TWS”) obtained its licence on 8 September 2008

in circumstances that are set out in full in my decision dated 20 June 2008 (copyattached Annexe 1). Paragraph 19 of that decision stated that the activities of theTransport Manager could be expected to come under close scrutiny.

2. The Transport Manager at that time was Keith Duncan Lippitt (Mr Lippitt). Hewas replaced on 18 August 2009 by Neal Philip Timmins (Neal), who is also a Director of TWS, who had obtained his CPC.

3. By letter of 10 May 2010, TWS, Neal and Mr Lippitt were called to a PublicInquiry, which was held at Birmingham on 17 June 2010. Mr Michael Carless againappeared as advocate. I reserved my decision because I needed time to reflect on allthe evidence in this case.

Comments

4. I place on record that I have come within a whisker of revoking this licence anddisqualifying the Company and its Directors. TWS must realistically expect that to bethe outcome if it is called to Public Inquiry again. It is only the assurances given in theevidence by Neal, a reference from the Environment Agency, and the giving of the setof undertakings in Annexe 2 that have persuaded me that this company may, just, begiven a further chance.

5. When TWS obtained its licence, it was evident that there had been, both duringits lifetime and during the lifetime of its predecessor Timmins & Sons (Codsall) Ltd,significant shortcomings in the arrangements for tachograph examinations and analysis,resulting in drivers committing offences and the company failing to detect them.

The Public Inquiry in 20106. On 20 August 2009 LGV registration mark S589 RKV was checked by VOSA on

the A449 in Wolverhampton. It was being used by TWS and was specified on itslicence. It was being driven by Kristian Paul Wilding who had been in the employ of TWS since 20 May 2009. He produced 51 charts and Traffic Examiner Love took thechart that was in the equipment. Even with 52 charts present, it was apparent thatsome of the previous 28 days’ were missing. Fixed penalty notices were given. Mr Wilding produced two charts later, but the information on them did not correspond withwhat should have been on the missing charts and I conclude that they were not the

missing ones.

7. Traffic Examiner Love visited TWS and found that charts were just filed and leftalone. Neal confirmed that the Company had purchased a scanner but no-one wastrained to use it. This remained the case until December 2009, it emerged at the PublicInquiry. This lapse covers the period when Mr Lippitt was Transport Manager and thefirst few months of Neal holding that post.

8. It was evident that no checking had been done on Mr Wilding’s charts since hestarted work. Indeed the company was not even able to establish what days he hadworked and whether he had been supervised by anyone, or, if he had, by whom. There

were 1601 missing kilometres, which is a lot for vehicles which operate locally over short distances.

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9. There was virtually no evidence of any disciplinary action being taken againstany driver, and what there was related to late handing-in of defect sheets.

10. A detailed examination of 100 charts showed numerous offences over the periodJuly/August 2009. Mr Wilding was prosecuted on specimen charges, as was BWS on

specific charges. (Annexe H to the calling-in letter).

11. There was also a prohibition issued on 12 March 2009 to the driver of V926 EFVfor an unsealed tachograph. (Annexe G to the calling-in letter).

12. A mechanical condition prohibition was issued to S589 RKV on 16 January 2009,and it was varied when the vehicle was presented for clearance. (Annexe G to thecalling-in letter).

13. TWS and 3 of its drivers came before me on 17 June 2010. I dealt with thehearings simultaneously as is the approved practice. I disposed of the cases on their

individual merits.

14. Kristian Wilding was not present, but I followed the normal practice of giving himone further opportunity to attend a hearing.

15. There was no significant dispute over the Traffic Examiner’s findings. I adopt her conclusions as fact.

16. Neal told me in evidence that the company provided waste collection, disposaland recycling services for large organisations as well as the general public. IT had 7vehicles, 2 of which were SORN’d. He had cooperated over the investigation (I wouldexpect no less) and at the turn of the year had begun using the services of TDI, whoprovided a written report setting out drivers’ hours transgressions. He found this easier to manage than the scanner system the company had previously had but not usedeffectively because it was too difficult to understand. Charts were now sent weekly toTDI and follow-up action was taken on their reports.

17. Neal explained that although outside contractors were used to take materialsfrom the yard in Mander Street to landfills, the company was currently using 5 vehicles.If it lost its licence it could not continue. I was given a glowing reference from an officer of the Environment Agency.

18. Neal explained that Mr Lippitt’s practice had been to “pop in every now andagain” and look through maintenance records, but did not check any tachograph charts.

19. I hear from Michael W Jones, a former Vehicle Examiner within VOSA, who hadvery recently been brought in to audit the systems and do spot checks on the vehicles.His initial assessment was that the company had improved since Traffic Examiner Love’s visit. I was impressed by Mr Jones, who wishes to have a further career providing this type of service to operators. His continued involvement is to bewelcomed – in fact I am going to insist upon it.

20. I am satisfied the company can manage with 5 vehicles at present. If it needsmore, it can apply, but it can expect that any such application will trigger aninvestigation.

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The position of Brian Paul Timmins21. My 2008 decision precluded the involvement of Brian Paul Timmins (Brian) in

BWS after 31 December 2008. Before that deadline was reached I was asked to liftthat prohibition, so that Brian could earn a living. I refused, but, wisely or not, caused a

letter to be send to Mr Carless, the material part of which read:-

“I have considered Mr. Carless’s request on behalf of the company TimminsWaste Services Ltd and Mr Brian Timmins. I recognise that my decision willcause hardship to Mr Timmins and his immediate family, but my responsibility isthe safe, lawful and fair operation of large goods vehicles, and, for the reasonsset out in full, but summarised in paragraphs 18 and 23 of my decision, I am of the view that this is one of the worst examples of misconduct by aDirector/Transport Manager that I have ever seen, and it was aggravated by Mr Brian Timmins’ attempt to hide his personal convictions from me. It is my viewthat a long period of time will need to elapse, in addition to that which has

already elapsed, before Mr Brian Timmins can have any prospect of beingregarded as suitable for any involvement with large goods vehicles. If theCompany can find a way of setting up a separate consultancy company that canutilise Mr Brian Timmins’ undoubted experience in the waste disposal/recyclingindustry, without his having anything whatsoever, directly or indirectly, to do withthe operation of large goods vehicles, that is a matter for him and the Company,but I make it clear that any breach of the undertaking given by the Companyabout his non-involvement will fundamentally undermine the basis on which thelicence was granted.”

22. When Traffic Examiner Love visited in August 2009 she saw Brian working in theyard. It was explained to her that he was involved with the recycling aspect and hadnothing to do with vehicles. At the hearing, Neal confirmed this. Brian had remained anemployee of the company throughout. He was not part of the team running therecycling section, had nothing to do with vehicles and did not direct them.

23. I find that the undertaking prohibiting Brian’s involvement has been breached,but I accept that my letter may have created a mistaken impression about the scope of the prohibition as relating only to involvement with vehicles. I have therefore redraftedthat undertaking in terms that cannot be misunderstood.

Conclusions24. I have had regard to the requirement that any action I take has to beproportionate and directed to ensure future compliance. In this case there has been along-standing dereliction of the arrangements for ensuring that the rules on drivers’hours and tachographs would be observed. This is by far the worst aspect of the case.There are other unsatisfactory aspects, but the directions I am making will give theCompany a taste of life without a licence and will ensure that, if the Company wants togo back to having 7 vehicles it will undergo close scrutiny. Indeed, it may well be that itwill come under further scrutiny from VOSA anyway. If it adheres to the requirementsof operator licensing, it has nothing to fear from VOSA, but if it does not, it can expectthe worst.

25. Having received confirmation that the 8 undertakings set out in Annexe 2 aregiven, I feel that the appropriate and proportionate response to what I have had to

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consider is the Directions that are set out in paragraphs 1, 2, 3 and 5 hereof so far asTWS is concerned.

26. Mr Lippitt, on the evidence before me, throughout his tenure failed, even thoughhe must be taken to have been on notice that his duties would be scrutinised by VOSA,

to take any effective action to prevent tachograph transgressions. There is nothing tocounterbalance this, and it displaces his previously established repute. I find that hehas therefore lost his repute. If he wishes to act as a Transport Manager again, he willneed to satisfy a Traffic Commissioner that he is fit to do so.

Lester MaddrellDeputy Traffic Commissioner 13 July 2010

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Annexe 1

My decision of 17 June 2008.

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West Midland Traffic Area

Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”)Timmins & Sons (Codsall) Ltd – OD188369

Timmins Waste Services Ltd – OD1065857

Decision of the Deputy Traffic Commissioner

1. On 28 March 2007 and 13 May 2008 at Birmingham I conducted a joint PublicInquiry in respect of (a) the standard national goods vehicle operators held since1992 by Timmins & Sons (Codsall) Ltd (“Codsall”) authorising 15 vehicles and 2trailers and (b) an application dated 31 October 2006 by Timmins WasteServices Ltd (“TWS”) for a new standard national goods vehicle operator's

licence to authorise 9 vehicles and 1 trailer.

2. The reasons for Public Inquiry are set out in the letters dated 23 February 2007(Codsall) and 16 February 2007 (TWS).

3. At the hearing on 28 March 2007 I heard evidence from Mr Brian Paul Timmins(“Brian”) and Mr Neal Timmins (“Neal”). There was at that stage someuncertainty about the directorships of Codsall, but it later transpired that Brianhas been the director principally in charge of Codsall for some time towards theend of its life, his parents having for one reason or another been less involved.Brian was intended as the Transport Manager of TWS, Neal and Mr CarlTimmins (“Carl”) were the directors of TWS.

4. It quickly became apparent that I did not have enough information about thecircumstances that had led to the winding up of Codsall in November 2006. Itherefore adjourned so that a liquidator’s report could be obtained. It was clear that TWS had been operating without a licence. I envisaged a period of onlyweeks before matters could be resolved, but this was not to be the case.

5. An interim reply was received from the Liquidator on 20 April but it was not until27 September 2007 that a more detailed (but still not complete) report was

received. That showed that the liquidation of Codsall was caused by asuccessful counterclaim brought by Wolverhampton Council for over £600,000,relating to overcharging for waste disposal services.

6. More significantly, it revealed that Codsall had been prosecuted over itsweighbridge and in relation to the incorrect disposal of over 1000 refrigerators.

7. Enquiries were made of Codsall & TWS about the nature of the prosecutions.The reply, signed on behalf of Brian, gave court dates of 11/08/05 and 09/03/06,“Weights and Measures Act” and “Environmental Health”, as the nature of theoffences and £19,450 fine and £30,000 fine as the penalties. This information

was received around 20 November 2007. Enquiries were made to obtainCertificates of Conviction, but these did not arrive in time for the reconvenedhearing on 13 May 2008.

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8. In the meantime, VOSA had paid visits in the autumn of 2007. Vehicle Examiner Austin Jones found 3 vehicles in a condition requiring the issue of prohibitions(albeit ‘S’ marked) no driver defect reporting system, and a truly shocking testhistory of 25 out of 26 vehicles failing annual tests, with only one pass after rectification at the station, and only one straight pass. There had also been 4

other prohibitions issued.

9. Traffic Examiner Tracy Love found that there was no ongoing system for checking drivers’ licences, and the tachograph charts were littered about theplace and in vehicles, with scores of infringements. 2 vehicles were out of test.Brian said one of them had been “SORN’ed” when it had not.

10.At the hearing on 13 May 2008, the history of Codsall as given above wasconfirmed by Brian as correct and the findings of the Vehicle Examiner and theTraffic Examiner were accepted. By this time, TWS were legally represented.Brian and Carl gave evidence. It was explained that there had not been a

previous compliance visit, and there was now in place a system wherebyvehicles were regularly inspected, drivers reported defects, and theadministration had been tidied up. I did not doubt that this was so.

11.TWS had contracts with a different Council, had acquired new machinery and acompany called BNCT Ltd. (after Brian, Neal and Carl Timmins) had acquiredCodsall’s premises. TWS had a waste licence and a good relationship with theEnvironment Agency. It was clear from the evidence of Brian and Carl thatBrian, although not a Director, was a key member of the team. The troubled lookwhich came over Carl when I asked him about the consequences of excludingBrian from the operation was particularly revealing.

12.It was submitted that I should grant TWS’s application as applied for, or possiblywith less vehicles, because only 5 were in use at any one time. It was not in thepublic interest to refuse it because it provided a valuable public service and wasa viable business.

13.I reserved my decision. Subsequently, two Certificates of Convictions arrivedfrom the Crown Court at Wolverhampton. One confirmed the penalties imposedon Codsall for the Environmental Protection offences. The other revealed for thefirst time that Brian has been convicted of identical offences with identical

sentences. I caused a letter to be sent seeking comments on what weight Ishould attach to these convictions, which are clearly under Section 33(1) (c) of the Environmental Protection Act 1990. These are notifiable convictions under paras 4 and 5 (h) (i) (iv) of Schedule 2 of the Act, as well as being “seriousoffences” within the meaning of para 3 (1) and (2) (b) of Schedule 3. Brian hadnot disclosed them either in the Transport Manager form or in the course of either part of the hearing.

14.I subsequently received a submission to the effect that Brian's convictions hadbeen unintentionally overlooked. I was also offered a reference from a member of staff of the Environment Agency.

15.Codsall could not, of course, produce financial evidence. It had been convictedof eight “serious offences” as with the meaning of para 3 (1) and 2 (b) of

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Schedule 3. It had undergone a major change in its circumstances, namelycessation of business and liquidation.

Determination16.I have had regard to the requirement that the action I take has to be

proportionate to the extent of the defaults disclosed and to the aims of thelegislation. By reason of the facts set out in the first two sentences of para 15,revocation of the licence of Codsall is mandatory under Section 27 (1) (a) and (b)of the Act, and I also revoke it under Section 26 (1) (h), because cessation of business and liquidation are changes of circumstances incompatible with theholding of an operator’s licence.

17.It was admitted that, as from the liquidation of Codsall, TWS had run vehicleswithout an Operator’s Licence. Subcontracting was not financially viable, I wastold. I did not revoke Codsall’s licence at the hearing in March 2007, because Ihad at that time insufficient information to determine the case. I envisaged that

only a few weeks would pass before I had enough information, but in the event itwas more than a year. During that time, unlicensed use continued, but it wasalways known who was responsible for the running of the vehicles. In fact,because of the automated process by which licences are continued, Codsall’swas continued in the summer of 2007. In all the circumstances of the case Ihave decided that unlicensed use should not be a feature of any determination of TWS’s application. However, if unlicensed use continues after the date set out inpara 23 of this decision, vehicles will be liable to impounding and forfeiture.

18.Brian was the principal Director of Codsall during the time that it committed andwas convicted of eight “serious offences”. He has also committed two “seriousoffences” and has failed in the most blatant manner to disclose them. I do notaccept that a Crown Court appearance as an individual resulting in fines of £30,000 can possibly be “overlooked”. I do not accept the reason put forward for his non-disclosure of these convictions. His good standing with the EnvironmentAgency does not make him suitable to be a transport manager, nor does it makehim suitable to be involved in any way with a business which uses large goodsvehicles. He has lost his repute as a Transport Manager. I further direct thatunder Section 28 (5) (a) and Section 28 (1) Brian be disqualified from holding or obtaining an Operator’s Licence in any Traffic Area, and I make direction under Section 28 (4) in respect of him. These directions take effect from the date set

out in para 23 and are for an indefinite period. In reaching these conclusions Ihave borne in mind that it is open to me to disregard any conviction under para 5(b) of Schedule 3 but because (a) the offences are so bad (b) Brian failed todisclose them and (c) Brian manifestly failed in his duties as Transport Manager of Codsall, as revealed by the Vehicle Examiner’s and Traffic Examiner’sunchallenged findings, which were not in my view sufficiently redeemed by thebelated implementation of an improved system of maintenance andadministration.

19. I accept that TWS provides a useful service. I am willing to grant TWS a licenceonly if (a) a replacement Transport Manager is found and (b) an Undertaking is

given, to be recorded on the licence under Section 13 (8) of the Act “that BrianPaul Timmins shall not be engaged in, employed in, or be involved in anycapacity whatsoever with the business carried on by the licence holder after 31st

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December 2008”. I allow some time for TWS to make arrangements for others totake over Brian’s duties. If this Undertaking is given, and a satisfactoryTransport Manager (whose functions can be expected to come under very closescrutiny by VOSA) can be found, by 31st July 2008 the licence will be granted for 7 vehicles and 1 trailer, that being less than 9 applied for but enough for the

business to function. It is running only 5 at present and I do not consider it rightfor it to be able to increase its vehicles by 80% if it chose, at least until it hasshown it can effectively run a satisfactory maintenance regime of 5 plus amodest margin to cover repairs and to allow some flexibility.

20.If the Undertaking is found to be breached, this will fundamentally undermine thebasis on which I have decided that TWS can have a licence.

21.If the Undertaking is not given, the application is refused because TWS will haveas a key member of its team a person whose conduct has shown him to be unfitto be associated in any way with a business in which the operation of large

goods vehicles is central.

22.If no suitable alternative Transport Manager is found, the application is refusedbecause TWS is not professionally competent (Section 13 (11) and 13 (3) (c)).

23.These Directions take effect on 1st August 2008 to allow for the necessaryadministrative steps to be taken.

20th June 2008A. Lester MaddrellDeputy Traffic Commissioner West Midland Traffic Area

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Annexe 2 - Undertakings

Safety Inspections will be pre-planned and never more than 6 weeks apart. ThePMI reports will be fully and properly completed, show rectification and beretained for at least 2 years.

A random audit of safety inspections will be conducted not less than three-monthly when all vehicles will be checked by Michael Jones. The findings will berecorded and made available to staff from VOSA or the Office of the TrafficCommissioner on request.

There will be a nil defect daily driver reporting system. Defect reports will showrectification and all reports will be retained for at least 2 years.

The Operator will undertake a random audit of at least one driver per week to

ensure the drivers are undertaking their walk-round checks correctly. Thefindings will be recorded and made available to staff from VOSA or the Office of the Traffic Commissioner on request.

Maintenance systems, maintenance documentation and vehicle inspections willbe audited by Michael Jones every three months. Audit reports will be prepared,acted upon and retained for at least 2 years.

All authorised vehicles will have a thorough and effective pre-MOT inspection.Records to be kept for at least 2 years.

All tachographs will be independently analysed and monthly reports will beprepared, acted upon and retained for at least 2 years.

To replace the existing Undertaking in respect of Brian Paul Timmins. Brian PaulTimmins will not be a director (whether in name or in fact), manager or shareholder in the Company, and will not have any managerial or administrativeresponsibilities, nor will he drive or ride in or on any vehicle operated under thislicence, nor have any responsibility for or take part in any way in themaintenance or direction, control or operation of any such vehicle.

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tcs written decision on timmins waste services ltd

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