Traffic Commissioners' guidance

A whopping great document, Statutory Guidance and Directions, has just arrived from the Senior Traffic Commissioner's (STC) office. It sets out in one place the rules by which operators and their use of their O-licence should be judged.

At more than 200 pages, this is a draft version for consultation purposes and not light reading. However, it should be read and understood by operators and transport managers. It is bound to form part of any syllabus on training courses, such as the CPC for transport managers.

Each of the 12 sections consists of guidance, which sets out the legislation and case law for that area, as well as directions. It is intended that TCs and their staff should act in accordance with the directions, having a regard to the guidance. The document covers the whole range of operator licensing: applications for licences and variations, operating centres, transport managers, repute issues, appeals, PI, driver conduct, and so on.

There is no mandatory requirement for operators and transport managers to read this material. However, the document constitutes a comprehensive guide to all aspects of O-licensing and gives an understanding of the processing of, and criteria for, the grant or variation of licences to the decision making by TCs at public inquiries.

The material in the Guidance and Directions has been marshalled in one place from:

? existing material (eg legislation and existing TC Practice Directions and case law) already in place;

? material in existence that has been applied in practice but never formally published, such as the ratio of vehicles to transport manager hours of employment;

? new material not previously seen.

The 12 sections deal with the following areas:

? good repute and fitness;

? financial standing;

? transport managers;

? operating centres;

? legal entities (including sole traders, partnerships, companies and LLPs);

? case management;

? principles of decision-making;

? vocational driver conduct;

? written decisions;

? impounding;

? appeals;

? delegation of authority (including multiple licence holders, Leeds TCs and the delegation of functions to staff).

The publication is subject to a consultation, which includes trade associations and large operators, closing on 25 February. For such a large work, this is relatively little time and it is questionable whether organisations can carry out their own analysis and respond in depth within it.

It may be that the vast bulk of the document will remain unchanged, even after consultation. However, this is the first version and these documents will be revised and amended as regulations are changed. The Access to the Occupation Regulations come into force in December 2011 and will force a review of some of the material. The access regulations limit part-time transport managers to four operations with no more than 50 vehicles in total.

The STC is empowered by changes in the Transport Act 2008 to be given a statutory role. In the TCs' Annual Reports 2009-10, the STC describes how this includes the need to provide 'clarity and transparency to the governance arrangements' for the TC system. That report states this has "for the most part been achieved through consulting on and the preparation of draft statutory guidance and statutory directions".

Transport managers

This area has been of concern to TCs and this sets out their expectations - it should be read by all operators and transport managers. Of particular interest will be a table that sets out the ratio of hours worked devoted to the role of transport manager and fleet size managed. For example, a fleet of more than 15 vehicles requires a full-time transport manager.

Financial standing

This often misunderstood area is expanded from the existing practice direction. It provides more detail on how the average available balance on bank accounts is calculated, not previously unknown but not formally published. It also explains what is meant by "available" financial resources. Many operators fail to meet the requirement because they have their finance sitting outside the entity within which they trade or just don't have the funds.

Good repute and fitness

This part sets out how good repute is defined and catalogues the many factors affecting repute, including convictions. There are lists of numerous adverse events that may be significant, including failure to notify changes, poor licence history and any background of previous business failures. This section provides a good checklist of issues operators should be aware of and well worth reading in detail.

Trading entites

This is a good outline of the legal significance and meaning of sole tradership, companies, partnerships and limited liability partnerships (LLPs). It underlines how a new licence must be acquired if there is a change of entity, such as from partnership to limited companies, a failing that often leads to a public inquiry (PI). It includes liquidations, administrations, bankruptcy, receiverships and pre-pack arrangements. It also explains the effect of the death of a licence holder. The regulations permit a bridging arrangement for a certain period, enabling a third party to step into the shoes of the deceased to prevent the licence lapsing. It covers the effect of partners joining or leaving a business, a change of entity that requires a new licence. By reading this section, operators can avoid many pitfalls. Failure to hold a licence in the name of the correct entity affects repute as unlicensed transport operations will by definition be unlawful. At any given time numerous hauliers are engaged in transport operations that are unlicensed for this reason.

Operating centres

Many bodies can object to an application for an operating centre, including police, councils, some trade bodies and local residents. This can be a frustrating problem, sometimes only resolved through a PI and by agreement to conditions laid down by the TC. The guidance describes those owners or occupiers of land in the vicinity of the operating centre who may suggest prejudice to their occupancy because of noise, visual intrusion, vibration and/or fumes/pollution caused by the transport operations.

The suitability of operating centres comes into the frame either when a licence is first sought, it is varied, there is a five-yearly review or where there are complaints. This document will help those who need to understand and tackle objections - the directions set out what factors might be taken into account by TCs when considering the suitability of an operating centre. These include frequency of vehicle movements, size of vehicles, entry/exit points into and out of the operating centre; how conditions may be imposed; and at what stage a PI might be called.

Driver conduct hearings

Operators should circulate to their drivers the published tables of sanctions, which may be imposed by TCs against drivers who commit offences and that are described in great detail.

The directions outline when warning letters, brief licence suspensions or revocation should take place. By way of example, a driver should receive, as a starting point, a 14-day vocational licence suspension for unlawful mobile phone use or 21 days if the driver has used the phone when driving a lorry.

In due course, the final version of Statutory Guidance and Directions will be published. For now, operators should download this material as a reference work, even in its current draft format.

Download the document from the DfT website.

? Tim Ridyard is a Road Transport & Logistics lawyer at Woodfines Solicitors LLP, (based in Cambridge - offices also in Milton Keynes, Bletchley, Sandy and Bedford) tridyard@woodfines.co.uk

For more compliance advice and fleet management best practice, go to our Compliance page and sign up for our monthly bulletin, in association with Tachodisc and TomTom Business Solutions.