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CE Transport Law | Operator Licensing | April 2018 Blog

Fronting - what is it and what are the risks?

Operating Light Goods Vehicles in the EU | C E Transport Law

Operating Light Goods Vehicles in the EU – Rule Changes

Bus expert Chris was and still is a bus driver who became a transport solicitor and lecturer before his retirement

Vocational Licence Renewal | C E Transport Law

On the 17th December 2021, the Traffic Commissioner for Scotland, Claire Gilmore published a press release following her decision in the case of SAMUEL HUNTER T/A HUNTER TRANSPORT. The licence was revoked, and the operator was disqualified from holding an operator’s licence for a minimum of five years.

Mr Hunter was caught operating too many vehicles for his licence and there were more than two hundred drivers’ hours offences within a three-month period. The operator sought to blame all of the problems on his drivers, but it was found that the company had a transport manager ‘in name only’ for at least a decade. The operator was also found to have pressured his drivers into the offences and falsified records.

The traffic commissioner said “I did not believe the operator’s claim to believe that all the journeys he allocated to his drivers could all be completed lawfully and within time. Two of the drivers who gave evidence spoke of a culture of pressure which led to them offending to try and complete their journeys on time. The operator did not ask his drivers to break the law, but the culture of pressure he created, coupled with his deliberate failure to monitor driving activity, actively encouraged it.

I considered that the operator’s willingness to deceive, coupled with his wilful neglect and repeated failings, demonstrated a flagrant disregard for the operator licensing regime on his part. Such behaviour led me to conclude that I was unable to trust this operator in the future.”

This decision reminded me of the importance of taking professional advice before a hearing. Given the scale of the offending it is inconceivable that the operator was not have at least neglectful in fulfilling his duty to ensure rules on driver’s hours are observed for at least a period of time.  The judgement reports 245 offences over a period of around three months, including numerous and serious instances of driving off card and falsification of records by drivers who were found to be using other driver cards.

It would appear that in choosing to blame his drivers for failing to comply with the rules, instead of taking responsibility for it, Mr Hunter has not only lost his licence but now cannot re-enter the industry for a period of time. A better approach may have been to accept the shortcomings in the business and seek to demonstrate that this could and would improve with proper training and assistance. 

Although the judgement reports that Mr Hunter accepted that he had done wrong and apologised for his behaviour, this simply does not go far enough. Although there is certainly a separate responsibility upon a professional driver to comply with the law, proper oversight rests with his employer. 

 The decision can be found here https://www.gov.uk/government/publications/decision-for-samuel-hunter-ta-hunter-transport/decision-for-samuel-hunter-ta-hunter-transport

The press release can be found here https://www.gov.uk/government/news/shifting-the-blame?utm_medium=email&utm_campaign=govuk-notifications&utm_source=6a081636-c5bb-4034-badb-908c7e1cc2d6&utm_content=daily

Amazon Freight Partners - Word of Caution

Back in 2014 (and then 2017) the government consulted on the exemptions from operator licensing, looking specifically at those exemptions which covered; vehicles fitted with plant that also carry goods; recovery vehicles; mobile cranes; showman’s vehicles and electric vehicles. The government responses to those consultations have now been published.

i)	Vehicles Fitted with Plant that also Carry Goods

It should be no surprise that the exemption for ‘Vehicles fitted with a machine, appliance, apparatus or contrivance…’ has been amended. The requirement that ‘the only goods to be carried should be for use in connection with the machine, appliance, apparatus or other contrivance or the running of the vehicle’ has been removed. It is expected that the major effect this will have will be to bring Mobile Concrete Batching Plant vehicles (MCBPs or Volumetric mixers) into scope of operator licensing. The Department for Transport have stressed that there will be no changes to the exemptions for vehicles fitted with plant that is used for the treatment of grain, the production of animal fodder and road cleaning.

ii)	Recovery Vehicles, Mobile Cranes & Showman’s Vehicles

The next three vehicle type exemptions in the list above (i.e recovery vehicles, mobile cranes and showman’s vehicles), have all escaped removal or any modifications and the vehicles covered by these exemptions will therefore remain out of scope of operator licensing. 

The remaining exemption that has been subject to these consultations and that has not escaped unscathed is that of the Electric Vehicles or to be more precise ‘electrically propelled vehicles’. This exemption dates to a time when more than 90% of electrically propelled vehicles on the road were milk floats (how times have changed!). 

Following the limited responses to both the 2014 and 2017 consultation on electric vehicles the Government has decided that the current exemption for all electrically propelled vehicles will be removed except for those vehicles first registered before 1st March 2015. The Government have also said that a new exemption will be introduced for alternatively fuelled vehicles with Maximum Authorised Mass of up to 4.25 tonnes.

There is a further issue affecting Volumetric mixers (MCBPs) that is addressed in the published response for the operator licensing exemption consultations and that is the ‘operating weights’ of these vehicles. Look out for this in our blog next month!

CE Transport Law | UK Operator Licensing - Impending Changes to the Exemption Categories | Blog

As promised in a previous blog we are going to take a brief look at the proposed changes to the operational weights of volumetric mixers or MCBPs.

An additional outcome of the Department for Transport (DfT) consultation on the exemptions from testing and plating concerned the operational weights of Mobile Concrete Batching Plant vehicles or volumetric mixers. The current operational practice for these vehicles is to run at ‘up to or above’ the design gross weight of the vehicle which is above normal axle weight limits. The DfT response to this issue raised in the consultation is that this practice must not continue. 

The DfT proposes the temporary use of Vehicle Special Orders (VSOs) to restrict MCBP axle weights to no more than 20% more than the standard limits. This measure is temporary with DfT envisaging this arrangement lasting for between 7 and 10 years.

The DfT will issue VSOs to individual vehicles at the operator’s request which will specify the normal regulatory requirements that apply to the vehicle plus any addition conditions. The VSO will provide details of any derogations from the regulations that apply to the vehicle, on the basis that all other regulatory requirements not included in the VSO will apply.

With relation to the Road Vehicles (Authorised Weight) Regulations 1998 (AWR) the following gross vehicle weights will apply to the relevant MCBP configurations;

· The gross vehicle weight will not exceed 6 tonnes per metre of the wheel base of the vehicle, from front axle to rear axle, AND

· The AWR axle weight limits shall not apply (although the axle weight shall not exceed the standard axle weights by more than 20%).

During the consultation process, the section of industry using MCBP vehicles indicated that they would favour a new design of vehicle using five axles as opposed to the four-axle vehicles currently being used. The DfT are currently proposing, as part of the permanent solution, that operators may be able to add an additional axle to certain vehicle configurations. This would not allow operators to exceed the standard axle weights of the vehicle and would be carried out through the special types regime.

Proposed Changes to Operating Weights of Mobile Concrete Batching Plant (MCBP) or Volumetric Mixers

Changes to the Guide to Maintaining Roadworthiness issued 2018

On Monday 23 April 2018 the latest revision to the Guide to Maintaining Roadworthiness was published. There are quite a number changes to the previous guide, some potentially having more impact than others. Let’s have a look at some of the changes.

i) Removal of the inspection frequency graph

A major question asked by many operators is what should the frequency of my safety inspections be? The answer to this question was previously to be found in Annex 4 by way of an ‘inspection frequency graph’. This graph has been removed and replaced by a series of case study scenarios describing an operation and the inspection frequency for that operation. The idea of the use of scenarios is to encourage operators to take a pro-active approach and base the frequencies on their actual operation.

ii) Safety inspection and repair facilities

The section on inspection facilities has been amended to reinforce the fact that facilities at any service provider or workshop must be adequate to carry out the work. The staff should also be suitably qualified and have reached a recognised quality standard e.g. IRTE accreditation scheme. A phrase used in the guide is ‘even if the inspection is contracted out’ would indicate that operators using third party service providers should ensure the facilities and staff at these providers are in line with the requirements.

There has been additional advice added on brake testing. For example, the recommendation that when carrying out a roller brake test the vehicle is in a laden condition. There is also information on how to use Electronic Brake Performance Monitoring Systems. Another recommendation is if a road test is being used to assess the brakes it is recommended that the brake temperature readings should be measured and recorded on the safety inspection sheet.

Some of the other changes to the guide include;

Emissions and air quality - This is currently a major issue for road haulage with a visible increase in enforcement at roadside checks. A new section has been added highlighting the importance of correctly maintained emissions control systems

Tyre management-  The guide has information to assist in aspects of tyre management including monitoring tyre age. Tyre issues and defects are some of the most common issues found by DVSA enforcement at roadside checks.

There is an updated driver defect report to include AdBlue system checks and vehicle height systems.

There is also advice for the operator on the use of the Vehicle Operator Licensing system (VOL)

This list is by no means exhaustive but hopefully gives you a flavour of the changes. A full copy of the new guide can be found at https://www.safedrivingforlife.info/looking-after-your-vehicles

How Does the 2018 Revised Guide to Maintaining Roadworthiness Impact Your Business?

With the implementation of the EU Directive 2014/45 on harmonisation of roadworthiness testing in May 2018, DVSA have reviewed the inspection manuals for both HGV and PSV vehicles. The revised manual include details of additional test items, that include; daytime running lamps, reversing lamps, front fog lamps and headlamp cleaning devices (where mandatory). There is also a definition of unsafe modifications which may become a failure for certain items such as brakes or steering. 

Article seven of the directive introduces defect categories such as Minor, Major and Dangerous. Any defects or problems found during the test will be categorised under one of these headings. The definitions of these categories is:

Minor deficiencies – No significant effect on the safety of the vehicle or impact on the environment. This category would also cover minor non-compliance issues.

Major deficiencies – May prejudice the safety of the vehicle or have an impact on the environment or may put other road users at risk. This would also cover other more significant non-compliance issues. 

Dangerous deficiencies - Defects that constitute a direct and immediate risk to road safety or would have an immediate impact upon the environment. These would be at a level that would justify the prohibition of the use of the vehicle on the public road.

If a vehicle is found to have defects in more than one of the above categories it will be deemed to be in the category of the most severe deficiency reported. If a vehicle has a number of defects reported that are of the same deficiency category the vehicle may be categorised in the next level up of deficiency if it can be proven that the combination of the defects reported are likely to result in a higher risk to road safety.

Revised Inspection Manuals - What You Need to Know

From 4th June 2018 we will be sharing our motorways with learner drivers. 

This has followed a series of changes to the driving test for a standard licence including:

Use of satellite navigation as part of an extended independent driving section of the practical test;

Removal of the ‘reverse around a corner’ and ‘turn in the road’ manoeuvres and 

Introduction of two ‘show me/tell me’ questions on vehicle safety 

Before everybody gets worried that the motorways are going to be full of learner drivers with mum or dad in the passenger seat there are certain criteria that come with this change to driver training. The lessons taking place on a motorway will be voluntary, they must be supervised by an approved driving instructor and the car being used must be fitted with dual controls. 

Learner drivers will only be taken onto a motorway once their instructor is satisfied that the pupil has the necessary high-speed driving skills required to cope with the motorway environment. These skills would normally be gained through driving experience on dual carriageways.

Lessons undertaken on motorways will cover such areas as; 

Overtaking and the correct use of lanes; 

Understanding motorway-specific traffic signs

If you do encounter a learner driver on the motorway, or on any other road, please remember Rule 217 of the Highway Code:

“Learners and inexperienced drivers. They may not be so skilful at anticipating and responding to events. Be particularly patient with learner drivers and young drivers." 

Even though they may have an approved driving instructor with them.

Is That a Learner I see Before Me – On a Motorway?

This may not affect everybody reading this blog, but it will almost certainly be of interest to those with restricted operator licences or those thinking of applying for a restricted licence. 

During June the Senior Traffic Commissioner released a consultation seeking the views of operators relating to the current level of financial resource required for a holder of a restricted operator licence. The level of financial standing for standard operator licence holders is set by the EU and changes annually based on the exchange rate between sterling and the Euro. The level of financial resource for restricted operator licence holders has not changed since 2004.

When applying for a new licence or a variation of an existing licence an integral part of the application is proving financial standing or resource. The Traffic Commissioners must be satisfied that the operator is in a financial position to ensure that the vehicles operated under the licence are maintained properly. This financial level is not only to be proven at the time of application but must be maintained during the life of the licence. The Traffic Commissioners can request evidence of financial standing or resource at any time.

According to the Traffic Commissioners annual report for 2016/2017, 52% of goods vehicle operators held a restricted operator licence. Currently, the differing rates for standard and restricted licence holders are:

Financial Resource Consultation - Restricted Operators

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