Case No. UKUT-5-(AAC)

3. The Appellant is the sole proprietor of McCaul Transport which undertakes general haulage. He has a Standard International Goods Vehicle Operator’s Licence (ON1136588) which was granted on 23 April 2015 and authorised the use of one vehicle. This was subsequently varied to authorise the use of two vehicles and two trailers. The Operating Centre was specified as 260 Ballygawley Road, Dungannon. The Appellant also acted as the Transport Manager for the operation.4.On 29 June 2018, the Transport Regulation Unit (“the TRU”) issued the Appellant with a Formal Warning that he had failed to adhere to the undertakings required under the Goods Vehicle (Licensing of Operators) Act (Northern Ireland) 2010. This was because a number of roadside checks by the Driver and Vehicle Agency (“the DVA”) had demonstrated regulatory infringements, such as exceeding the number of vehicles permitted on his licence, lack of correct tachograph recording, and no rear number plate being displayed on a vehicle. These had amounted to “Very Serious Infringements” under the DVA guidance. He also had a low first-time annual test pass rate on his vehicles. The Appellant was advised that further episodes of non-compliance would result in the warning being taken into account if considering whether action should be taken against his operator’s licence. 5. Despite this warning, the Department continued to receive notifications of further infringements relating to the Appellant’s operation. These notifications, recorded between May and September 2019, included infringements in relation to insufficient daily rest breaks for drivers, exceeding the time permitted before a rest, and the tachograph not functioning properly. The DVA were also informed of a further reduction in the first-time pass rate for the Appellant’s annual vehicle test inspections (dropping from 33% to 25%). As a result of the continued infringements, all of which resulted in fines being issued and most of which were noted as amounting to a “Very Serious Infringement”, a Compliance Audit was arranged to take place by the DVA on 4 November 2019. 6. A pre-audit discussion took place on 29 October 2019 with Mr P Davey from the DVA, the Appellant and his newly appointed transport advisor, Mr P McElduff, all in attendance. The Appellant, as Transport Manager, was provided with copies of the “Guide to Maintaining Roadworthiness”, the “Safe Operator’s Guide”, the “Rules on Drivers’ Hours” and “Tachographs on Goods Vehicles in Northern Ireland and Europe”. It was noted that there were no written contracts in place for third party maintenance providers, but ad hoc maintenance work was being carried out by two named maintenance providers. There was little evidence supporting processes for routine safety inspections, defect reporting or for the rectification of such defects. No records were kept of the 6-weekly safety checks which were to be undertaken by the operation. There were no procedures in place for daily walk-around checks or driver hours recording but instead it was noted that the Appellant simply trusted each individual driver to undertake this procedure as required by virtue of their CPC qualification and their driver knowledge. There were no systems in place for ensuring vehicle weights were correct. The establishment from which the business operated was found to be basic but sufficient, albeit there was no phone or laptop, and the Appellant, as Transport Manager, was not able to produce any of the records that are required to be kept by the operation. It was considered that the Transport Manager (the Appellant) was not engaging in his administrative and regulatory duties fully due to the lack of policies, procedures and checks in place to ensure the regulations were being complied with. 7.The audit then took place as planned on 4 November 2019. It was noted by the auditor, that the Appellant had employed the services of an industry advisor, Mr P McElduff, to assist with the co-ordination of his administrative responsibilities, and Mr McElduff was present at the audit. The auditor recorded that the Appellant had accepted that his business was poorly organised and that he was in need of assistance and advice to ensure that his operation remained licenced. All sections of the audit report (relating to maintenance, driver’s hours, weights, transport manager, establishment and “other”) were returned with a rating of “unsatisfactory” and the operator, the Appellant, was deemed “non-compliant”. These findings were reported to the TRU on 2 December 2019.8. The Appellant’s licence came up for renewal in early 2020. The DVA noted that the Appellant had applied for a renewal as a limited company, KMC Transport Ltd. He was asked to confirm what legal entity he was applying under, as a change of name on the licence would require a fresh application to be submitted rather than a simple renewal. The Appellant did not respond to the correspondence requesting confirmation on the name. On 2 April 2020, the DfI wrote to the Appellant advising, once again, that his operator’s licence is not transferable to a new business entity and unless the new entity had a valid licence, it would be unlawful for him to operate under his current licence, as a company. He was asked once again to confirm whether he was operating as a limited company or as sole trader. There was no response, but he then deleted the “Limited” trading name in his renewal request. He was reminded once again that he could only operate under his current Operator’s Licence as a sole trader, and not as a limited company. 9. Following this, further infringements continued to be notified to the DVA, including one “Most Serious Infringement”. These infringements occurred after the audit had taken place, one on 29 December 2019, some six weeks after the audit. Five of the infringements were recorded on 5 February 2021. It appeared that the Appellant had also failed to notify the Department of the infringements which he was obliged to report under the conditions of his Operator’s licence. 10. The DfI became concerned that the Appellant was unable to manage his operation in line with the regulations, as a result of the persistent infringements to the regulations. This was particularly so, given the small number of vehicles in his fleet (two) and the continued lower than average first-time pass rate for annual vehicle inspections. The Department also became concerned that the number and type of infringements were such that the Appellant, in his role as Transport Manager for McCaul Transport, was not ensuring continuous and effective management of the transport operation, as the role obliges him to. In addition, the Department queried the Appellant’s financial standing as there was a risk that the infringements may have occurred due to a lack of financial resources to maintain his vehicles and the operation correctly. A Public Inquiry (“PI”) was arranged to take place in order to address these concerns. 11.On 16 November 2021, the Public Inquiry took place in respect of the Appellant’s Operator’s Licence. The Appellant did not attend the Public Inquiry (“PI”). He did not excuse his attendance and there was no explanation put forward for his absence. He had not supplied the DfI with the documentation it had requested in advance of the PI, which was necessary for consideration at the PI. He was represented by Counsel, Mr Finnegan, who requested an adjournment of the Inquiry that day. He did so on two grounds. The first was that his instructing solicitors had received the PI bundle late and while the papers had been dealt with straight away by instructing Mr Finnegan to act, his directions had not been actioned as the instructing solicitor had been called to England due to a death in the family, thus unable to deal with his work. Secondly therefore, Mr Finnegan had not had the opportunity to take instructions from the Appellant or fully prepare this case. The Appellant was not present to furnish his instructions on the day of the PI either, hence Mr Finnegan found himself in a position where he was therefore unable to deal with the case effectively on his client’s behalf on that day. 12. The Deputy Presiding Officer, who was chairing the PI on behalf of the DfI, refused the adjournment and therefore proceeded with the PI in the absence of the Appellant. He later determined, by written notice, that the Appellant’s operating licence was revoked, that he was disqualified from holding an operator’s licence indefinitely, and he was disqualified indefinitely from acting as a Transport Manager on any operating licence.