Haulage & Logistics Law

HGV Traffic Commissioner Public Inquiry

Traffic Commissioners (assisted by their Deputies) are responsible for licensing and regulating operators of heavy goods vehicles (HGVs) and their drivers. They are empowered to grant HGV O Licences or applications to vary them, and to take regulatory action against licence holders and (where applicable) company directors in circumstances where an operator has not complied with its O Licence undertakings.

Traffic Commissioners may also make adverse findings relating to the repute and professional competence of transport managers who have not complied with their regulatory obligation to “continuously and effectively manage” the transport operation.

The Traffic Commissioners’ jurisdiction also extends to HGV drivers and includes the power to take action against a driver’s vocational entitlement if a driver’s conduct falls below the required standard. For more information on Traffic Commissioner Driver Conduct Hearings click here.

Reasons for a Public Inquiry

There are a number of different situations which may trigger a call-up to a Public Inquiry which will be notified to the operator in a call-up letter (and usually to the operator’s transport manager(s) in separate correspondence) usually issued around 4-6 weeks before the Inquiry hearing date together with copies of all the relevant evidence that the Traffic Commissioner has been supplied with and upon which the decision to call a public inquiry is based.

Usually, inquiries are convened either as the result of a licence application (which can include a brand new application or an application to vary an existing licence) in circumstances where the Traffic Commissioner feels that more information is required before he/she can be satisfied that the application should be granted, or in order to decide whether or not to take regulatory action as a result of having received information which gives the Traffic Commissioner reason to believe that the operator may have breached its operator’s licence conditions or undertakings, in such a way as to require regulatory action in response.

New Licence Applications

When a Traffic Commissioner decides to consider an application for a new O Licence, there will usually be a particular reason, for example:-

• The number of vehicles or trailers that are being applied for
• The proposals for the maintenance, service and safety inspections of the vehicles and trailers
• A concern over finance
• There may be a problem with the location(s) from which vehicles and trailers will be operated
• The operator itself or key personnel named in the application (such as a company director(s) and/or the proposed nominated transport manager) may have an adverse compliance and/or financial history
• The Traffic Commissioner remains to be satisfied that the operator is ready to run a safe and compliant commercial road transport operation

Variation Applications

Operators should always check the call-up letter to see if the Traffic Commissioner is proposing to consider taking action against the O Licence as well as considering the variation application or whether it is only the variation application that is being made the subject of the Inquiry. Issues that can arise include the following:

• There may be a concern about a proposed new operating centre
• The application has triggered a DVSA compliance visit which has resulted in a negative report about aspects of the operator’s compliance systems
• The Traffic Commissioner is concerned that the operator may not have sufficient resources to enable it to operate a larger number of vehicles

Existing operators (where no application has been made)

When an operator is called to public inquiry, the reasons and the evidence that the Traffic Commissioner is proposing to consider will be explained in the call-up letter and supplied to the operator. Examples of the sorts of issue that can arise include -

• A DVSA audit or investigation has triggered a recommendation that the operator be called to a public inquiry
• There are failings in the operator’s maintenance systems (perhaps evidenced by a high roadworthiness prohibition rate and/or a low annual test first-time pass rate)
• There are failings in the operator’s systems for monitoring compliance with the drivers’ hours regulations
• There has been an isolated incident which gives cause for concern around the operator’s systems for ensuring road safety such as a serious accident or a wheel-loss
• There may be a suggestion of ‘foul-play’ including deliberately trying to obstruct a DVSA or police investigation
• There is a history involving criminal convictions of the operator, its senior management and/or drivers (especially where those convictions relate to road transport offences)
• It appears that the operator has failed to notify the Office of the Traffic Commissioner (“OTC”) of important developments including material licence changes - including changes in statutory directors and ownership – or failures to tell the OTC about notifiable fixed penalties or convictions
• The operator no longer appears to be of appropriate financial standing
• There are environmental issues including investigations by the Environment Agency and/or convictions for environmental offences
• There is evidence that the operator has used an AdBlue emulator ‘cheat device’
• There is evidence of some other unlawful operation including ‘disc swapping’ or ‘fronting’

What happens at an Inquiry?

The Inquiry room is set out like a courtroom with the Traffic Commissioner sometimes sitting behind a raised bench – but there is no dock, witnesses usually give evidence sitting down and evidence is not given under oath (although of course, anyone giving evidence before an Inquiry is expected to tell the truth and not doing so carries the risk of very serious repercussions).

There are not strict rules of evidence of the sort that one sees in criminal or civil proceedings nor a pre-determined order in which people speak although if there are DVSA or police witnesses then they usually give their evidence first. That being said, Traffic Commissioners need to make sure that the proceedings are fair and operators are afforded the opportunity to give their evidence and to make the Traffic Commissioner aware of the points which they regard as being most important.

Decisions of the Traffic Commissioner at Public Inquiry

At the end of the public inquiry, the Traffic Commissioner may be in a position to give a decision ‘on the day’ or it may be necessary to spend further time to consider all of the evidence that he or she has heard before being ready to do so. In those circumstances, the Commissioner will provide a written decision, and one would normally expect to receive the written decision within 2-6 weeks of the hearing.

In relation to applications, the Commissioner may grant an application in full or in part, or the application may be refused.

In so far as decisions on existing O Licences are concerned the Traffic Commissioner may revoke the or suspend the O Licence or the number of vehicles and/or trailers may be curtailed for a temporary period or permanently. Traffic Commissioners may also issue a warning to an operator without taking action against an O Licence and additional O Licence undertakings may be accepted and/or O Licence conditions imposed.

In cases involving revocation Traffic Commissioners will go on to decide whether or not to make orders of disqualification. Such orders are reserved for the most serious cases.

In relation to Transport Managers who have been called up to public inquiry on their own account, Traffic Commissioners will make findings on their repute; is it retained, retained by ‘tarnished’ or lost? Plainly the finding that an operator’s nominated transport manager has lost his or her repute is capable of having significant regulatory and/commercial consequences.

Decisions by Traffic Commissioners can be appealed and applications made to Stay orders of revocation until after the appeal has been heard.

Legal representation at Public Inquiry

Given everything that can be at stake for an operator and/or their transport manager at a public inquiry we recommend that anyone in this position should at least make contact with specialist lawyers for an initial (usually free) consultation.

Being properly prepared for an Inquiry can be the difference between a successful outcome and catastrophe (a licence application refused or an existing O Licence revoked or suspended). Knowing what questions the Traffic Commissioner is likely to ask and why, and being prepared with the answers (supported by relevant documents) is vitally important.

At Pellys Transport & Regulatory Law, we have many years of experience in preparing goods vehicle operators for Public Inquiries as well as representing them at these hearings. If you are called to public inquiry we would encourage you to get in touch with us.

Contact us now or call us on 01279 818280 and let us try to help safeguard your haulage and logistics business.

Finally, the Office of the Traffic Commissioner has produced a detailed guide to traffic commissioner public inquiries. It includes further information on how an operator might be called to an inquiry, how you might find out if an inquiry is to be held and how they work on the day – and it is well worth a read.