Upper Tribunal (Administrative Appeals Chamber), December 02, 2016,  UKUT 539 (AAC)
|Resolution Date:||December 02, 2016|
|Issuing Organization:||Upper Tribunal (Administrative Appeals Chamber)|
|Actores:||McDonald (t/a River Tay Executive Travel) (Transport Traffic Commissioner and DoE (NI) Appeals entries from Jan 2016 : Disqualification)|
 UKUT 0539 (AAC)
Appeal No. T/2016/27
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER (Traffic Commissioner Appeals)
ON APPEAL from the DECISION of the SCOTTISH TRAFFIC COMMISSIONER (Ms J Aitken)
Dated: 19 May 2016
Mr E. Mitchell Judge of the Upper Tribunal
Mr D Rawsthorn Member of the Upper Tribunal
Mr J Robinson Member of the Upper Tribunal
Appellant: Mr K McDonald (t/a River Tay Executive Travel)
Heard at: George House, 126 George Street, Edinburgh
Date of hearing: 9 September 2016
Attendances: Mr T Docherty, solicitor, of Jeffrey Aitken Solicitors
Date of decision: 1 December 2016
DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal is dismissed.
Disqualification orders and directions under section 28 of the Transport Act 1985
CASES REFERRED TO:-
CG Cargo & Sandhu  UKUT 436 (AAC)
REASONS FOR DECISION
In 2003, Mr McDonald was granted a standard international public service vehicle (PSV) operator's licence. The operator's licence specified Ms I Armstrong as transport manager for the PSV operation.
By notification dated 1 July 2014 (although receipt-stamped 7 August 2014), Ms Armstrong notified the Office of the Traffic Commissioner (OTC) that she wished to be removed as transport manager from the licence.
Ms Armstrong's resignation was preceded by a Driver & Vehicle Standards Agency (DVSA) investigation which led DVSA to conclude there had been a number of breaches of drivers hours rules by the operation's drivers.
In November 2015, Mr McDonald informed the OTC that he wished to nominate a Mr William Spiers as his transport manager. However, in Mr McDonald's subsequent public inquiry evidence he said that Mr Spiers later decided that he did not want to be the operation's transport manager.
The Scottish Traffic Commissioner (hereafter ``Commissioner'') conducted two public inquiries on 3 December 2015 and 6 January 2016. At the second inquiry, Mr McDonald produced new evidence as to his financial standing (pp. 971 to 1067 of the OTC file).
The Traffic Commissioner was dealing with a complex multi-faceted case. Not only did it concern Mr McDonald's operator's licence, the Commissioner also had to address the professional competence and good repute of Ms Armstrong as a transport manager, whether to revoke an operator's licence granted to another PSV operator (a partnership trading as Nevis Coach Hire) and driver conduct matters for four PSV drivers. We should note that the Commissioner decided that Ms Armstrong had lost neither her repute nor her professional competence and decided not to revoke Nevis Coach Hire's operator's licence.
Mr McDonald does not dispute the Traffic Commissioner's findings of fact concerning events in the period between Ms Armstrong's resignation and the Commissioners' public inquiries.
The Commissioner's findings included:
(a) On 23 August 2014, Mr McDonald wrote to the OTC stating that he was in the process of hiring a new transport manager and would produce further information in four weeks. In the meantime, the previous transport manager (Ms Armstrong) was ``coming in weekly to check tachographs and operations'';
(b) During her tenure as transport manager, Ms Armstrong worked part-time carrying out her duties at weekends;
(c) ``latterly the expansion of the business to 5 vehicles, with Ms Armstrong's full-time employment prevented her from engaging with the drivers and an absence of robust written procedures resulted in vulnerability in the effectiveness of the transport manager'';
(d) Ms Armstrong ``detected infringements on the [tachograph] charts and...alerted Mr McDonald to the deficiencies in relation to feeder journeys and neglect of the mode switch. She fully trusted Mr McDonald to raise these matters with the drivers and he assured her that he would do so. Her trust and confidence in Mr McDonald to tackle the adverse matters which she drew to his attention in her role as transport manager was misplaced and breached by him. Whilst he may from time to time have spoken to drivers, he did not implement robust measures to ensure that he scheduled duties compliantly and that a true record of drivers hours was kept'';
(e) Ms Armstrong had only wanted to act as transport manager for a temporary period to help him establish his business and she told Mr McDonald ``years ago'' that he needed to make alternative arrangements;
(f) Mr McDonald presented as a ``nice guy, a genial chap...who wanted to be on friendly terms and would not present as being resistant to advice or authority'';
(g) Mr McDonald had complied with Traffic Examiner requests for information and to see him. He had been co-operative;
(h) ``Mr McDonald would have presented himself to Ms Armstrong as one who was listening to her, giving her the assurances she needed to hear, being at the operating centre when she needed him to be there and so on. I am sure he would have disliked any confrontation with drivers'';
(i) ``Ms Armstrong would not have known the extent of non-compliance [with drivers' hours and tachograph rules] because she trusted Mr McDonald implicitly. He was the operator and ultimately he was responsible for his own licence and speaking to his own drivers. He knew that Ms Armstrong did not have the availability to see the drivers and that the onus was on him to tackle the infringing behaviour which she had drawn to his attention'';
(j) Mr McDonald ``breached the licence undertakings in relation to the drivers hours rules and tachograph regulations'';
(k) Mr McDonald ``has not had in place proper systems to ensure that journeys were properly recorded; that drivers were taking breaks and rest when required to do so on all occasions; that he allowed prevalent failure to use the mode switch both in his own driving and that of his employees'';
(l) The Commissioner found it ``incredulous'' that Mr McDonald had not himself read a tachograph analysis report of his operations produced by Penkridge Group, a transport consultant, and supplied to him prior to the public inquiry held on 3 December 2015;
(m) The Commissioner had doubts as to whether Mr McDonald had the required financial standing;
(n) Of itself, the absence of a transport manager called for revocation of Mr McDonald's licence because, without a...
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