dimelow decision

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REDACTED VERSION – FOR PUBLICATION

WEST MIDLANDS TRAFFIC AREA

PUBLIC INQUIRY HEARD AT BIRMINGHAM 14TH JULY 2010

DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

RE

SIMON JOHN DIMELOW T/A DIMELOW METAL SERVICE

Standard National Licence No. OD260271

Goods Vehicles (Licensing of Operators Act) 1995

DECISION

The licence is revoked with effect from 2359 hours on 6th August 2010 pursuantto Section 26 (1)(a),(b),(c)(i),(c)(iii),(e) of the Act.

The licence is revoked with effect from 2359 hours on 6th August 2010 pursuantto Section 27(1)(a) and Schedule 3 of the Act as the holder of the licence nolonger satisfies the requirement to be of good repute.

The licence is revoked with effect from 2359 hours on 6th August 2010 pursuantto Section 27(1)(b) and Schedule 3 of the Act as the holder of the licence no

longer satisfies the requirement to be of appropriate financial standing.

The operator Simon John Dimelow is disqualified with effect from 2359 hourson 6th August 2010 from holding or obtaining an operator’s licence in this or any other Traffic Area for a period of 15 months ending 2959 hours 5th

November 2011 pursuant to Section 28 (1) and subject to the provisions of Section 28(4) of the Act

Background1. Simon Dimelow is a sole trader and the holder of a Standard National

Licence granted in June 1995. The initial authorization for 10 vehiclesand 3 trailers was reduced to 8 vehicles and 2 trailers following a Public



Inquiry on 23rd of August, 2004 and has not subsequently been increased

or amended. It was agreed at a preliminary hearing on 19th June and

subsequently reaffirmed at the hearing that although some of the vehicles

operated under this Licence were concrete mixers none of them fell into

the category of being exempt from operator licensing. The operator,

represented by Mr C. Stansfield, of Messrs Charles Stansfield & Co.,

Solicitors, was called to this Public Inquiry pursuant to Section 26 (1)(a),

(b),(c)(i),(c)(iii),(e),and(f), Section 27(1)(a),(b) and (c), Section 28 and

Schedule 3 of the Goods Vehicles (Licensing of Operators Act 1995

(hereinafter referred to as “the Act”), as a result of convictions arising in

part from a Traffic Examiners investigation into tachograph and driver’s

hours offences and an adverse maintenance investigation.

2. This Inquiry was originally listed for hearing on 19th June when

immediately prior to hearing I was made aware of the additional VOSA

evidence relating to the second maintenance investigation and roadside

checks which gave rise to the pending prosecutions Although there was

no application for an adjournment by the operator, the serious

implications of this evidence led me, pursuant to the decision in 2000/5,

to direct an adjournment so the operator could properly formulate his

response to that evidence.

The Evidence

3. In the preparation of this Determination I have reviewed the following:-

• Public Inquiry brief including the supplementary VOSA evidence

supplied in advance of the hearing to both myself and the operator

and his representative and the schedule of recorded convictions

against the operator set out in Annex H to the call-up letter.

• The bundle of documents including submissions, contracts and

financial information supplied by Mr Stansfield, also in advance of

the hearing.

• All further documents submitted in the course of the hearing.

• My contemporaneous hand written notes compiled during the

hearing.



• The final submissions made by Mr Stansfield in support of his client

including, at my request, his comments on the application of

Schedule 3 paragraphs 2(b) and 4(a) (i) and (ii) of the Act to the

facts of this case.

4. Although not specifically referred to any authorities during the hearing I

have, in the course of reaching my decisions, had regard of the following

decisions namely:-

• 2000/5 M Williams9 (Re Adjournments)

• 2000/9&10 Stevenson and Turn and McHugh -v- DETR (Re

Convictions)

• 2002/217 Bryan Haulage No.2 (Re Repute)

• 2001/74 B E Clark Re Disqualification)

5. I received evidence from Vehicle Examiner Seadon in relation to two

adverse maintenance investigations conducted in November 2009 and

April 2010 when 8 prohibitions (3 of which were “S” marked) were

imposed. This was followed by evidence from Traffic Examiner Forrester

in relation to an investigation resulting in the conviction of the operator in

February 2010 for one offence of failing to produce analogue and/or

digital tachograph records in respect of a written request, 20 offences of

failing to use a tachograph record sheet or driver card and 4 offences are

being the user of a goods vehicle which had exceeded 4.5 hours driving

without a break. Traffic Examiner Russell gave evidence of two roadside

checks in February and April, 2010 which resulted in pending

prosecution’s against the operator for driving a heavy goods vehicle

when not holding a category C entitlement, the use of a heavy goods

vehicle subject to an immediate roadworthiness prohibition and using a

heavy goods vehicle without a valid test certificate.

6. I then heard evidence from the operator both in relation the issues

revealed by VOSA’s investigation and the steps being taken to address

the issues which was followed by evidence from the nominated Transport

Manager, Mr Barry Dunn, as to those corrective measures and his

involvement with them.



7. Apart from an attempt to clarify the facts surrounding two convictions

against the operator in October 2009 for using two vehicles in excess of

authorisation, there was no cross-examination in relation to VOSA’s

evidence and I therefore do not propose to repeat or summarise the

evidence here as it is a matter of record from the documents and

available transcripts. I refer to the relevant aspects of the evidence as

part of my findings below.

Findings of Fact

8. The evidence of VOSA’s witnesses was comprehensive and

consistent and in the absence of any challenge by the operator as to its

veracity I accept their evidence in its entirety subject to the proviso that

due to administrative errors the VOSA witnesses were not aware at any

stage of their investigations of the reduction in authorisation to 8 vehicles

arising from the Public Inquiry in 2004 or that Mr Gary Warrilow had

ceased to be the nominated Transport Manager (T.M.) at time of that

Inquiry.

9. Dealing first with the issues relating to maintenance, I find that at the

time of the first investigation in November 2009, which was by prior

arrangement, the operator was using two unauthorised operating centres

as well as operating two vehicles in excess of authorisation. Of the four

vehicles inspected only two defect notices were issued. Although Mr.

Seadon confirmed that there was evidence that safety inspections were

generally carried out as required at six weekly intervals, some inspection

records were missing and those that were produced did not have the

mileage printed on them and were not endorsed as to rectified defects,

brake tests or road tests. I also find that that at the time of that inspection

there was no effective defect reporting system in place and that the

operator was using a mobile mechanic without any facilities in place of

the nominated maintainer Finntec . In the 12 months immediately prior to

the investigation five vehicles had been presented for annual test which

resulted in an initial failure rate of 100% and a final failure rate of 60%. I

accept that the operator was, on completion of the first inspection,

informed of the identified shortcomings in the operator’s maintenance



systems and advised of the steps he should take to rectify the

deficiencies revealed. In a letter dated 21 January 2010 the operator

stated that he had changed his maintenance provider with a new written

contract and that the two operating centres had been deleted and two

added.

10. I find that the maintenance situation identified was even more serious

when the VE returned to carry out a further investigation in April

2010.There had there been no change to the maintenance provider who

was still the same mobile mechanic operating without facilities, despite

the claim to the contrary by the operator in his written response in

January. With the exception of the defect reporting system which was

still not satisfactory but showed some improvement, the same

deficiencies as existed in November 2009 persisted together with the

additional finding that there was no forward planner in existence. During

the course of his evidence the operator stated that he had let a contract

to another maintainer but it had not worked out because their work was

unsatisfactory. Subsequent to this a new contract had been let to Imperial

Commercials on 11th June 2010 (produced, Exhibit 1), which was

currently operating. In regard to the operating centres Mr Dimelow stated

that he had obtained the forms but did nothing about it until his new TM,

Mr Dunn, had dispatched an application to Leeds on 2nd July 2010.

11. My main concern however arises from the fleet inspection which

resulted in prohibitions for each of the 8 vehicles inspected. I find that a

total of 33 prohibitable items were identified across the fleet of which 11

were immediately prohibitable and 8 were “S” marked. These included

very serious brake and tyre defects and 3 instances of loose wheel nuts. I

accept the VE’s assessment that despite the fact that some of the

vehicles were relatively young, [the vehicle list indicates that 9 of the 10

vehicles being operated were less than six years old], the overall

condition of the fleet was very poor and the prohibitions were due to an

absence of maintenance. I find that the fleet as inspected on that day

constituted a serious potential danger to other road users. During the

course of the operator’s evidence it was claimed that DX05GXK was “off

the road” at the time of the inspection. He confirmed there were no



records or information on the vehicle to confirm this. This vehicle

attracted an immediate “S” prohibition for loose wheel nuts and a

detached brake reservoir as well a delayed prohibition for 3 items and

nine defect notices. As this issue had not been raised in cross-

examination, I recalled Mr. Seadon to respond to this point. The VE

produced a receipt (Exhibit 2) for 96 litres of fuel for this vehicle on the

day prior to the inspection and stated that two drivers had told him the

vehicle had been operated the previous day. In the light of this evidence

I reject the operator’s contention that vehicle was “off the road” the time

of the inspection.

12. Looking at the evidence overall I find that this operator has failed to

discharge his responsibilities and undertakings to maintain his vehicles in

a roadworthy condition to the point where the continued use of his

vehicles constituted a significant danger to other road users. I also find

that even when these matters were drawn to his attention in November

2009 he failed totally to take any or sufficient remedial action to address

the issues identified in the earlier maintenance investigation and that he

made statements of action taken in his letter dated 21st of January which

he must have known to be incorrect.

13. I now turn to the evidence relating to the tachograph and driver’s hours

investigation. I accept the unchallenged evidence of TE Forrester which

resulted in the convictions referred to in paragraph 6 above. I find that

that at the time of his investigation there was no system in force at all for

the checking of tachograph records or for the detection and prevention of

breaches of the drivers’ hours regulations. The fact that there was over

4000 missing kilometres from the records produced during the period 5th

to the 18th of September 2009, confirms that there was widespread

breach of the regulations. The situation was exacerbated by the

operator’s failure to provide evidence as to who was driving at the time

the offences were being committed. Mr Forrester however confirmed that

he had seen no evidence to suggest that the operator was complicit in

the commission of the offences. In answer to my questions the TE stated

that although he had initially believed that the operator had been

genuinely unable to identify the drivers concerned he now believed it was



a deliberate attempt to conceal the information. This evidence was not

challenged in cross examination although when I put the issue to the

operator he stated that although he kept time sheets for each driver they

did not record the vehicle driven and therefore he could not be 100%

sure who was driving at the time of each offence. I cannot accept that the

operator who had complete control of his business at that time would not

have had information from which he could have provided at least some of

the information sought. Taking into account other aspects of his evidence

which I found to be inaccurate I am inclined on balance to accept the

view of the TE that the concealment of the identity of all the drivers

involved was deliberate and intended to impede further investigation.

14. Mr Forrester was cross-examined in relation to the facts surrounding

the two convictions on 19th of April, 2009 for using vehicles in excess of

the permitted authorisation. Memorandum of Entries of the Court

Register (Exhibit 3) proving the convictions were produced by Mr.

Forrester and he confirmed that the basis of the prosecution was that two

vehicles were being used in excess of what was thought to be an

authorisation of 10 vehicles whereas at that time the actual authorisation

was only 8 vehicles although as I indicate above I am satisfied that was

unknown to the TE at that time The operator claimed in his evidence that

it was a technical breach in that he had sold two vehicles at the time of

acquiring two new ones and had failed to notify the Traffic Area Office of

their disposal thus making it appear that the new vehicles were in excess

of authorisation. The decision of the Magistrate’s Court was appealed

successfully in that the penalty was reduced from £1500 pounds to

£1000 pounds in each case. The operator was unable to confirm

whether the appeal had been against conviction or sentence alone. I

cannot go behind the convictions which speak for themselves and whilst I

do not wholly reject the operator’s explanation for the offences, the

penalties even after their reduction on appeal, suggest that the matters

were not treated as an administrative failure. During the course of his

evidence I put to Mr Dimelow that he appeared to have continued to



operate ten vehicles continuously despite having had his authorisation

reduced to 8 vehicles in August 2004 and that he had failed to respond

the request for the return of two additional discs which had been sent to

him in error when he had paid the fees for the continuation of his licence

in 2005. He responded by saying that he did not recall the request for the

return of the two discs and that he had assumed that the curtailment had

ceased. I do not accept the operator’s explanation and I find that he has

knowingly operated in excess of his authoristion since the Public Inquiry

in August 2004 until I directed the immediate surrender of two discs at

the preliminary hearing on 19th June this year.

15. The evidence of TE Russell relates to two roadside checks giving rise

to a pending prosecution against the operator for three offences (see

paragraph 6 above) which are due to be heard in August. This evidence

was not challenged and the operator indicated that he would not be

contesting the prosecutions. If convicted this will be the operator’s

second conviction within 18 months of using a goods vehicle without a

test certificate which I regard as very serious in view of the condition of

the fleet being operated. The operator also stated in his evidence to me

that he did not hold an LGV of any kind and I find his admission to the TE

that he had driven HGVs before when there was no other driver was

available to be a matter which goes to the issue of his repute as an

operator. The operator’s explanation for using a vehicle (FJ06LZD)

subject to an immediate prohibition is that he had made a mistake in that

he believed it did not come into force until later that day. This is

consistent with the explanation given by his brother who was driving the

vehicle at the time it was stopped.Whilst it may have been a genuine

mistake it does not excuse the operator who has an obligation under his

Licence to ensure that such mistakes do not occur.

16. I have already summarised the operator’s evidence and my findings in

relation to his responses in regard to the majority of the evidence

submitted by VOSA. At the commencement of his evidence I put to him

the details of the decision letter following the Public Inquiry in August

2004. He responded by saying that he did not recall the letter but he did

agree that Mr. Warrilow had already ceased to be his T.M.by the time



4) with Mr Dimelow dated 29th June 2010 for 30 hours per week during

the initial set up period then reducing to 20 hours per week. The contract

was subject to 3 months notice of termination on either side. Mr Dunn

stated that there was a gentlemen’s agreement that if he decided to leave

he would ensure there was a suitably qualified and experienced CPC

holder to replace him. Mr Dunn stated that Mr Dimelow had not appraised

him fully as to the situation regarding the Licence and that he had learnt a

lot from this hearing. He had not had sight of the VOSA reports prior to

the hearing and had never worked for a fleet in such a poor state of

repair. He stated he had already made a start in regard to the vehicles all

which had been inspected and given fresh MOTs. The cost of this alone

had been £9-10,000. A proper defect reporting system had been

introduced and all tachographs and digital tachograph data was being

downloaded and checked by him and systems were in place to ensure all

mileage was accounted for. He stated that he was determined to get it

right and that as far as he was concerned the operator was up a blind

alley with nowhere to go if he did not accept Mr Dunn’s regime. I have no

reason to doubt Mr Dunn’s integrity and I accept his evidence as it stands

and his personal commitment in so far as it is within his power to deliver

a compliant operation

Conclusion and Reasons

19. For this licence to continue I have to be satisfied that the requirements

of good repute, appropriate financial standing and professional

competence are currently being met. I will deal with each of these in turn.

Repute: It is unfortunate that although the operator was given proper writtennotice of the decision of the last Public Inquiry in August 2004 and subsequent

reminders of the requirements to be met, administrative errors occurred which

resulted in the operator being issued with more discs than he was entitled to

when the licence was continued in 2005 and a failure to follow through when

requests for the return of those discs and the documentation relating to the new

transport manager were ignored. It also appears that VOSA was also never

officially informed of the results of the Inquiry. Notwithstanding the above I am

quite satisfied that the operator was fully and correctly made aware of his



obligations following that Inquiry and that he either knowingly or negligently

ignored the written reminders which were sent to him before further follow-up

action ceased. It is clear from my findings that Mr Dimelow then continued to

operate in almost total disregard of the law and obligations of operator licensing

in that he had no transport manager throughout that period, he operated more

vehicles than he was entitled to and for a significant but undetermined period he

used two operating centres which were not authorised. In addition he operated a

fleet which by April 2010 constituted a real and significant danger to other road

users, operated some vehicles without valid test certificates and drove vehicles

when not the holder of and LGV licence. I am not entirely satisfied whether this

was due to simple incompetence or a deliberate intention to avoid the cost and

obligations of a compliant operation although the total failure to promptly address

the issues drawn to his attention following the first maintenance investigation

suggests it was mostly the latter. It has to said in the operator’s favour however

that although no specific reference was made to it at the hearing, there is

reference in Mr Seadon’s second statement (page 9) to the fact that a

satisfactory maintenance investigation took place in 2005 although, for the

reasons given, the absence of a transport manager and the use of vehicles in

excess of authorisation do not appear to have been identified.

20. Against the background of my findings I find that Mr Dimelow has lost his

good repute as an operator. The very recent steps taken by Mr Dunn to

recover the situation, while appearing to have the support of Mr Dimelow,

do not recover the situation as far as he is concerned. In reaching that

decision I have considered the consequences of that finding and I am

satisfied, applying the guidance in 2002/217 and that the conduct of this

operator is such that he ought to be put out of business and that do so is

both proportionate and just in the circumstances.

21. I have also considered the convictions recorded between 15th May 2009

and 5th February 2010 (as set out in Annex H to the call-up letter) in the

context of loss of repute pursuant to Schedule 3 paragraphs 2(b) and

4(a) (i) and (ii) of the Act. In line with the guidance set out in

2009/9and10 I have considered and find each of the offences as serious

in the context of his overall conduct and approach to his obligations



under the Licence. Accordingly, I find that the operator has lost his good

repute on these grounds in addition to those referred to above.

22. Financial Standing: For reasons of confidentiality the evidence of

finance is removed from the redacted version for publication. My finding

is that the operator does not at the date of this Inquiry meet the

requirements for financial standing for this licence.

23. Professional Competence Mr Dunn is a forceful character and I accept

that he is both capable and determined to deliver a compliant regime for

this Licence. On the other hand, nothing the operator has said today

convinces me that he is fully committed to the fundamental change in

approach which is necessary to achieve a compliant operation. My

concern is that the only thing which stands between Mr Dunn’s regime

and the operator’s totally non compliant approach in the past is his

contract. There is also no doubt in my mind that Mr Dunn’s approach,

however commendable, will incur considerable expense to an operator

who has persistently demonstrated over the past 6 years an

unwillingness to expend the funds necessary to keep his operation

compliant. Whilst Mr Dunn’s contract itself covers the basic requirementsI would expect to see, it conveys no authority to expend funds without the

agreement of the operator. Nor does it convey any authority to discipline

or dismiss drivers who fail to carry out Mr Dunn’s directions. I see no

compatibility between Mr Dunn’s approach to transport operations and

that of the operator and whilst it may suit the operator to go along with Mr

Dunn’s approach while ever he perceives a chance that I may allow his

licence to continue ,the reality is that the operator could give notice of termination as soon as this Inquiry is concluded or alternatively simply

refuse to go along with Mr Dunn’s regime, in which case, I have no doubt

he would give notice of termination in order to preserve his own good

repute as a T.M.

24. I therefore find that while the requirement for professional competence

is met at the time of this Inquiry, I have considerable reservations as to



whether it would be sustained in the longer term if this Licence were

allowed to continue.

25. Disqualification: It follows from my decision with regard to repute that I

must revoke this licence and consider whether a period of disqualification

of this operator is appropriate and if so for how long. Although revocation

was clearly a possibility in this case Mr Stansfield chose not to address

me on this issue. Disqualification is not to be regarded as a punishment

although clearly it is punitive in its effect. In this case the conduct of the

operator is so serious that a clear line must be drawn under this particular

transport operation and if he is to re-enter the transport business at some

time in the future, the operator requires time to consider and prepare the

necessary steps to ensure a compliant operation in the future. I consider

a period of 15 months disqualification from the date of revocation is the

minimum required to meet this objective.

26. At the end of that period it will be open to Mr Dimelow to apply for a

new licence providing he can meet all the necessary requirements which

I would expect to be assessed in depth at a further Public Inquiry. Mr

Dimelow is warned of the consequences of any attempt to operate

without an Operator’s Licence in the meantime which is likely to result in

prosecution, the impounding of any vehicles as used and a significant

further delay before any new licence is granted.

C.R. SEYMOURDeputy Traffic Commissioner 19th July 2010

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