Ms Aitken called James Hendry trading as J Hendry Road Surfacing Contractors of Clippens Yard, Straiton Road, Loanhead to a Public Inquiry in Edinburgh on 13 December 2010.Mr Hendry did not attend at the hearing. After satisfying herself that Mr Hendry was properly notified of the Inquiry, Ms Aitken revoked Mr Hendry’s licence, with effect from 23:59 on 21 January 2011.The full text of the Traffic Commissioner’s decision is below. Details of her consideration of the evidence and her decision can be found from paragraph 17.TRAFFIC COMMISSIONER FOR SCOTLANDGOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995JAMES HENDRY T/A J HENDRY ROAD SURFACING CONTRACTORS – OM1053043PUBLIC INQUIRY – 13 DECEMBER 2010DECISION OF THE TRAFFIC COMMISSIONERBACKGROUND1. James Hendry was granted a restricted goods vehicle operator licence at Pubic Inquiry in April 2006. Current authority is for the use of 6 vehicles and a trailer and the only authorised operating centre is 8 Clippens Yard, Straiton Road, Loanhead , EH20 9NS. It is a sole trader licence. The reason for the application being considered at Public Inquiry was due to business/family associations with Mr Jacob Blyth Hendry his brother who held OM0029980, which was not continued in 2003 and Billy-Jean Hendry, his wife, sole Director of J & J Hendry Asphalt Contractors Ltd OM1013005, which was not continued in 2005. 2. By letter of 23 November 2007, Mr James Hendry wrote to say that there had been a change of address with immediate effect to Hendry Road Surfacing, 1 Poltonhall Industrial Estate, Lasswade, Midlothian and telephone numbers were given. That address was stated to be their new operating centre. No application was made to vary the licence. By letter of 14 May 2009, Mr James Hendry wrote to advise that he wanted the trading name on the operator licence to be James Hendry Road Surfacing Ltd, with the address details the same. That letter came with a letterhead which had at its foot the 1 Poltonhall Industrial Estate, address. Letters were sent to Mr Hendry on 24 June 2009 and 13 July 2009 (on that date sent to the Poltonhall Industrial Estate address and also to the Clippens address). Both letters advised that a change of entity had occurred and that a new application was required and that operating under the new entity was unlawful and that the existing licence should be surrendered and the discs returned. There was no response to those letters. In light of the failure to respond, a propose to revoke letter was sent on 10 September 2009. That brought forth a letter of 14 September 2009 which apologised for not answering previous correspondence and said that as the licence was already in name of J Hendry Road Surfacing Contractors they thought that adding Ltd. was not important. He pled ignorance. He asked for a new starter pack and they would endeavour to get this filled in and sent back with any necessary documentation. Full apologies were given and a new pack awaited.3. In light of that letter, I directed the revocation of the existing licence with effect from 30 October 2009, giving a period of grace to enable the limited company to apply for an operator licence in its own name. That letter advised Mr Hendry to deal with the matter as a matter of urgency. Appeal rights to the Transport Tribunal were given in the usual way. The operator appealed to the Transport Tribunal.4. By letter of 23 October 2009, the operator wrote to the Transport Tribunal “I wish to state that all my vehicles are still owned by James Hendry Road Surfacing Contractors and not James Hendry Road Surfacing Ltd. As stated in the last letter to yourselves this was an error on one of my office staff to ask for my licence to be changed from James Hendry Road Surfacing Contractors to James Hendry Road Surfacing Ltd. James Hendry Road Surfacing Contractors still fuels all these vehicles and is the owner of them not James Hendry Road Surfacing Ltd. Please accept my apologies once again for the confussion (sic) that my office staff have put you through but I do not need a new licence under James Hendry Road Surfacing Ltd as this company does not own or pay any bill or fuel of these vehicles. I hope this is all now self explanatory to yourselves and this matter can now be laid to rest.”5. That letter was seen by the Deputy Traffic Commissioner, he considered it and accepted the assurance that the licence would be continued in the sole trader entity. The letter from my office of 20 January 2010 advising of the Deputy Traffic Commissioner’s decision also advised Mr Hendry that if James Hendry Road Surfacing Ltd was to operate vehicles or the goods being transported belonged to someone other than James Hendry, operating under the existing licence would be unlawful. The letter also noted that Mr Hendry had changed operating centre address, the licence currently authorising 8 The Clippens, Straiton Road not Polton Road. This major variation to the licence must be applied for and a form was enclosed. There was no response to that and no variation application has been made. For completeness I record that no application has been made for a licence in name of the limited company. ADVERSE VOSA REPORT6. Following my receiving an adverse report from a VOSA Vehicle Examiner who had attempted to conduct a maintenance investigation at the unauthorised operating centre of Poltonhall Industrial Estate and finding it vacated, he located the operator at Humbie Holdings at Kirknewton and a maintenance investigation proceeded. I received a full report with supporting documentation. That included a statement and photographs of a detachment incident involving one of the operator’s vehicles X252CSG on 2 June 2010.7. In light of all matters concerning the operator licence and also the adverse report from the Vehicle Examiner, I directed that the operator be called to Public Inquiry. A call up letter to Public Inquiry was sent to Mr Hendry at Poltonhall Industrial Estate by letter of first class mail and recorded delivery. Following return of that letter which had been sent by first class on 12 November, a further copy of the brief and call up was issued to the further address given in the Vehicle Examiner report i.e. that of 11 Humbie Holdings.8. In the week commencing 15 November, one of the Clerks in my office took a telephone call from Mr Jacob Hendry who had received the Inquiry papers at Humbie Holdings. He stated that he had no involvement with James Hendry but would say nothing further. He stated he would return the brief and papers to this office but these have not been received. The brief of papers issued to Poltonhall Industrial Estate was returned marked “address gone away” on 25 November. A private address for Mr Hendry was taken from Companies House being 19 Clerk Street, Loanhead and the brief was re-issued on 26 November 2010. The Public Inquiry was called for 13 December 2010 at 2pm. There was no appearance for the operator and that being the case the Public Inquiry clerk called the telephone number given by the operator on the most recent correspondence from him being the letter of 23 October 2009, that is his letter to the Transport Tribunal. That telephone number was no longer available. There was another business number on OLBS and that was called and was answered by Ms Karen Marshall who was one of the signatories to some of the past correspondence from the operator. Ms Marshall said that Mr Hendry was unaware of the hearing and that she would provide a number for him. That number was called immediately but was not answered. A message was left indicating that a return call was urgently required. No response has been received. 9. I am now in the position of having to consider many adverse matters relating to this operator including an adverse Vehicle Examiner report and in the absence of the operator attending at Public Inquiry. In short, this operator (1) has failed to keep my office up-to-date with a correspondence address and place at which he can be contacted; (2) despite being advised to apply for a variation in respect of the operating centre that has not been done; (3) has failed to attend at a Public Inquiry.10. The previous revocation of the licence which was reversed by the Deputy Traffic Commissioner had put this operator on notice of the seriousness of attending to matters to do with the licence administration.VEHICLE EXAMINER EVIDENCE11. There was a maintenance investigation on 23 November 2007 and 5 December 2007 when it was noted that the operator had moved from 8 The Clippens to 1 Poltonhall Industrial Estate. The investigation was marked as unsatisfactory given that a prohibition had been issued to a vehicle on 23 October 2007 and the operating centre had changed. A letter was sent to the operator who responded. That letter of response was dated 24 January 2008 which apologised for not advising of the change of operating centre address and commented on the adverse matters found in the maintenance investigation. 12. A maintenance investigation of 28 May 2009 was endorsed unsatisfactory as safety inspection records were not available, the inspection interval was not as intended and there was no forward planning. On 26 May 2010, a further maintenance investigation was scheduled as a spot check and the operator was found to have moved from 1 Poltonhall. After various Inquiries by VOSA administrative staff an address was found of 11 Humbie Holdings, Kirknewton, West Lothian. An investigation was carried out at that address on 7 July 2010. The investigation was endorsed as unsatisfactory and a PG13F notice was issued with the following shortcomings being operator centre not notified, maintenance facilities unsatisfactory, inspection records not readily available, prohibition history and recent incident involving a detachment of a trailer. A shortcomings letter was issued, dated 23 July 2010, with no reply received and a further letter sent by recorded delivery on 11 August 2010 returned by the Royal Mail marked as refused. 13. The previous maintenance contractors were Scania and Volvo Bus & Truck but maintenance and inspections are being undertaken by a mechanic Mr Murray Lothian at 11 Humbie Holdings, Kirknewton out in the open on loose surface utilising basic tools and, in the opinion of the VOSA Examiner, not adequate for the size and type of vehicles operated. Given the absence of inspection records it was not possible to confirm the correct completion of such or the inspection frequency. No driver defect reporting system could be shown at the maintenance investigation and there was no forward planning.14. Annual test history – 6 tests have been carried out between 23 March 2009 and 30 June of which 2 passed, 1 PRS and 3 failed. An addendum updating this for the Public Inquiry showed that from 1 July 2010 to 6 December 2010, 2 vehicles were presented of which 1 passed and 1 failed.15. Prohibition history – since the Public Inquiry of 20 April 2006 at which the licence was granted, the operator’s vehicles attracted 6 prohibitions being 3 immediate and 3 delayed and 1 variation and refusal and these were described in the Vehicle Examiner’s brief. In an addendum, the Vehicle Examiner advised of 2 further prohibitions being 1 immediate and 1 delayed and a variation and refusal. Again, details were given in the addendum.16. Incident on 2 June 2010 – VOSA Examiners and Police Officers were on a routine mobile road check on 2 June 2010 when they received a call that a trailer had become detached from a vehicle on the A71 at Mid Calder. They attended there and discovered a tar spreader trailer had become detached from vehicle X252CSG being operated by James Hendry. The vehicle and trailer were inspected and an immediate prohibition was issued to the vehicle for load sensing valve linkage defective clearly not able to function as intended, linkage seized. The trailer tow pin could not be found at the time of inspection. The reason for the trailer detachment could not be determined but there could be two possible options, in the Examiner’s opinion. These were that the driver of the vehicle failed to carry out his first use check correctly and failed to ensure all safety clips and pins were located correctly or there was a mechanical failure on the trailer tow pin. This incident could have resulted in serious injury to a member of the public. A maintenance investigation was recommended. Photographs were attached to that report showing me the vehicle and trailer.CONSIDERATION OF THE EVIDENCE AND MY DECISION17. The first question I must pose to myself is has proper and fair notice been given to the operator of the Public Inquiry. Regulation 25 of the Goods Vehicles (Licensing of Operators) Regulations 1995 provides that “If during the currency of a licence the address for correspondence as notified in the licence-holder’s application or as subsequently notified under this regulation ceases to be an effective address for correspondence the licence –holder shall within 28 days from the date of such event notify the traffic commissioner by whom the licence was granted of an effective address for correspondence.” The last notified address for the operator was the Poltonhall address.18. Schedule 4 of the 1995 Regulations sets out how notice must be given of a Public Inquiry and in particular paragraph 6 provides “ (1) A notice required or authorised to be sent to a person under this Schedule may be effected by – (a) delivering it to him at an address which is his proper address; or sending it to him by post to an address which is his proper address; or transmitting to him a facsimile copy of it by means of electronic signals. (2) A notice sent under paragraph (1) shall, for the purposes of this Schedule, be deemed to have been sent when it would have been delivered in the ordinary course of post notwithstanding that – (a) the notice was returned as undelivered or was for any reason not received; or was in fact delivered or received at some other time.” 19. Proper address is defined in paragraph 6(4) – the proper address of any person is his last known address (whether of his residence or a place where he carries on business or is employed… and 6(5) provides that “Where a person has in the licence holder’s application notified the traffic commissioner of an address, or subsequently notified a new address under regulation 25, at which documents may be given to him for the purposes of correspondence that address shall also be his proper address for service for the purposes mentioned in sub-paragraph (3) or, as the case may be, his proper address for those purposes in substitution for that previously notified.”20. The Transport Tribunal/Upper Tribunal has had to consider action taken against operators who have been absent from a deemed called up Public Inquiry. Most of the cases turn on their own particular facts and in some the Tribunal has been placed in the invidious position of not having a contradictor to the appellant’s version of administrative events and the logistics of attendance. 21. By chance there has been a flurry of recent cases on absent operators and I can draw guidance from them.Stephen McVinnie T/A Knight Rider T2010/43 – very much on its own facts but the Tribunal found that an operator must adhere to the processes and timescales set by the traffic commissioner and cannot seek himself to determine matters.Nelson Rodgers and Francis Rodgers T/A Rodgers Fencing T/2010/47 – “the duty is upon an operator to ensure that they can be communicated with in the ordinary course of business” was stated by the Tribunal in an appeal brought by an operator who claimed not to have got letters and not to be responsible for mail not reaching him.John Perrin T/A JP Scaffolding – T2010 /51 – this case has similarities – letters were sent to various addresses but returned or no response. The operator had moved house and had been away from the correspondence address for over a year. The licence was subject to an in house revocation. Dismissing the appeal the Tribunal held that the obligation was on the operator to keep the traffic commissioner informed at all times of any change of correspondence address.Star Forwarding Ltd 2008/860 – Tribunal held that operators should notify changes in address and reply to correspondence, Traffic Area Offices cannot be expected to chase by telephone or fax.22. I am content that my Office properly notified the operator in terms of the Regulations. I am also content that my Office went further and intimated to the last place at which VOSA had seen the operator i.e. Humbie and also to the address for Mr Hendry as director of the limited company held by Companies House. Short of instituting a practice of only proceeding with Public Inquiries where there has been expressly affirmed receipt of the call up letter in advance of the Public Inquiry and adjourning and adjourning until such is affirmed (and which would not work given that those seeking to avoid Public Inquiries could avoid giving such affirmation) I am not sure what more could have been done in the instant case. In any event the Tribunal case law does not require that of my Office, making it clear that the onus is on the operator to have an accessible address and to keep my Office informed.23. I have considered this case in the round and have been guided by the case law of the Upper Tribunal/ Transport Tribunal in doing so. It is always problematic to deal with a case when an operator does not attend at Public Inquiry and where intimation and receipt of the Public Inquiry documentation becomes uncertain. It is always preferable to have the operator available at the Public Inquiry to answer. However, it is the experience of Traffic Commissioners and, as revealed in the case law to which I have referred and in any general reading of the wider case law, that there is a minority of operators who do not engage with the regulatory regime. To use colloquial language such operators duck and dive to avoid the paperwork, the formalities, the implementation of systems to ensure roadworthiness, and engagement with authorities (for example in this case VOSA had to go hunting to find the operator). They do sufficient to keep authority at bay to an extent. This case appears to be an example of such behaviour. Thus, every so often, there is a letter from the operator and the letters are always in polite and engaging terms and apologise but nothing is done to put matters right. 24. This operator has already been taken to the brink and the licence would have stood as revoked had the Deputy Traffic Commissioner not given a second chance, that is generosity and leeway has been shown. That can no longer prevail. I am fortified in this view because it is not just my office which has had difficulty with this operator but VOSA also. There is also the evidence of the Vehicle Examiner of difficulty in making contact with the operator and then when contact is eventually made there is evidence suggestive that the licence undertakings have not been met. This operator has not been able to demonstrate to the Vehicle Examiner that the licence undertakings in relation to record keeping and roadworthiness have been met. Vehicles have been failing at annual test and have been prohibited but I do note that none of the prohibitions have been ‘S’ marked though the incident with the disconnected trailer would have been probed at Public Inquiry – the absence of an ‘S’ marking should not detract from the apparent seriousness and risk to road safety of that incident. The operator would have had to give a very good account of himself in relation to that incident as it was extremely worrying. 25. I have decided that the time has come to revoke this licence which I do on the grounds of material change in respect that the contact details for the operator have changed as has the operating centre; that there is no authorised operating centre at present; and also the licence undertakings are not being met in relation to roadworthiness and the keeping of records. The operator cannot claim any unfairness in relation to not knowing about the Public Inquiry for he has failed to keep my office up-to-date with his correspondence address and he failed to return a telephone call my Office made to him on the day of the Public Inquiry. I consider that I am entitled to come to the view that there is a very high probability that the failure to keep in contact is a ruse to keep the enforcement agency and my own office at bay for some reason. Likely that reason is that this operator is not capable of complying with the licensing regime – maybe through attitude or lack of financial resource, may be ignorance – in his absence I cannot be certain but I can draw adverse inferences.26. When considering revocation I have to undertake a balance exercise and I have to be sure that the steps I am taking are proportionate to the matters before me. After all the revocation of a licence can lead to an operation being put out of business. In the instant case, I can find little that is positive. Apologies are not met by reformation so there is no evidence pointing to future compliance. I cannot have an operator who puts himself furth of contact. The operator has brought this upon himself. The licence will be revoked with effect from 23:59 on 21 January 2011.27. I have held back from disqualification but I do that knowing that any future application by this operator in whatever legal entity will be heard at Public Inquiry and the onus will be on him to demonstrate fitness or repute depending on what type of licence is sought.Joan N Aitken SSCTraffic Commissioner for Scotland21 December 2010Notes 1 There are eight Traffic Commissioners, each supported by a number of deputies, covering eight traffic areas across the UK. The Scottish Traffic Area Office is in Edinburgh.2 The Traffic Commissioners are statutorily independent Licensing Authorities responsible for bus, coach and goods vehicle operators and for local bus service registrations. They can also take disciplinary action against the licence of bus, coach and lorry drivers who commit road and certain other offences.3 Prohibition notices can be issued by the Vehicle and Operator Services Agency (VOSA) following an inspection and can prevent a vehicle from being driven until it is roadworthy.4 Traffic Commissioners have the power to revoke, suspend or curtail a company’s licence to operate buses, coaches and lorries if they are satisfied that a company is failing to ensure that its vehicles are maintained in a fit and serviceable condition when being operated on public roads. They can also take such action if they are satisfied that a company has failed to honour certain Statements of Intent made when they applied for their operator’s licence (i.e. that vehicles would be kept fit and serviceable and that the laws relating to the driving and operation of vehicles used under the licence would be observed).5 Action can also be taken against PSV operators who fail to operate local bus services properly or in contravention of the registered particulars. Traffic Commissioners have the power to cancel or restrict local services an operator may run, or impose a fine if services have not been operated, or operated improperly, to a significant extent.