Decision of the Traffic Commissioner on Barrhead Bus Company, First ...

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Monday 14 July 2008 00:01
Office of the Traffic Commissioner (Scotland)

Decision of the Traffic Commissioner on Barrhead Bus Company, FirstStop Travel LLC Ltd, Local Bus Company and Gullivers Travel


SCOTTISH TRAFFIC AREA
PUBLIC PASSENGER VEHICLES ACT 1991
TRANSPORT ACT 1985
* BARRHEAD BUS COMPANY - PM1043162
* FIRST STOP TRAVEL LLC LTD - PM2498
* LOCAL BUS COMPANY - PM2891
* GULLIVERS TRAVEL - PM1006510
* FLYING SCOTSMAN (ROADTRAINS) LTD - (APPLICATION) - PM1068794
CONJOINED PUBLIC INQUIRIES HELD AT EDINBURGH ON 13 MARCH 2008 AND 7APRIL 2008 AND CONTINUED FOR FURTHER INFORMATION TO BE SUBMITTED
The Traffic Commissioner for Scotland Joan Aitken has withdrawn thelicences held by four Renfrewshire bus companies, has disqualifiedMr John Walker, Operator and Director of all companies, for 10years and has imposed fines totalling almost £42,000.
In March 2008 the Traffic Commissioner called Barrhead Bus CompanyLtd, First Stop Travel LLC Ltd, Local Bus Company Ltd and GulliversTravel Ltd to a public inquiry. An application for an operatorlicence made by Flying Scotsman (RoadTrains) Ltd was alsoconsidered and subsequently refused at the inquiry.
The Traffic Commissioner found that bus services failed to operateaccording to their registered time tables and that levels ofroadworthiness and maintenance of First Stop Vehicles had beenbreached. In her written decision, the Traffic Commissioner said:
"A common thread came out of the evidence ... and that was of apattern of service non compliance and of using vehicles, liveries,legal lettering, destination boards, and absence of on hirenotices, all as if the legal requirements threanent did not apply.This represents bus operating at the lowest end of what is expectedof licensed operators."
Mr John Walker was found to have lied to the Traffic Commissionerat a previous public inquiry, made false declarations on licenceapplications and falsely claimed that Glasgow City Council hadendorsed his application for Flying Scotsman Ltd.
In her decision, the Traffic Commissioner commented:
"I am in no doubt that Mr John Walker is lacking in integrity, thathe lied to me in 2006 - most notably in relation to Gullivers andthat he lied in his Flying Scotsman application and he lied to meabout Glasgow City Council. I cannot trust a word he tells me nowfor if he can lie about these matters what else does he lie about.Indeed that he lied about there being support by Glasgow CityCouncil suggests that there is an element of the fantasist in him.This lying goes to repute."
The Traffic Commissioner found that Mr Walker had deliberatelysought to mislead the public and interfere with a well establishedlocal bus service, Dicksons of Erskine, by the creation of liveryin a similar name, using the same service number, route andtickets.
Joan Aitken stated:
"I am in no doubt that the only reason John Walker in his corporateentity operated the (bus route) 38 as he did was to drive Dicksonsof Erskine off that route. I do not need any more evidence to cometo that. That goes to repute."
The full written decision issued by the Traffic Commissioner isreproduced below.
The decision is summarised in the last paragraph - 97. Essentialfindings of the Traffic Commissioner and her consideration of theevidence can be found in paragraphs 79, 81,82,83 and 84.
DECISION OF THE TRAFFIC COMMISSIONER
Background
1. On 13 March 2008 and continued on 7 April 2008, I held conjoinedPublic Inquiries to consider regulatory action in respect of fourexisting operators being Barrhead Bus Company Ltd PM1043162; FirstStop Travel LLC Ltd PM2498; Local Bus Company Ltd PM2891; GulliversTravel Ltd PM1006510; and an application for an operator licencemade by Flying Scotsman (RoadTrains) Ltd PM1068794. There is acommon human involved in all of these operations being Mr JohnWalker, Director of all and Transport Manager of all bar two of thecompanies (another being nominated on the applicant company). (TheTransport Manager shown for First Stop is Mr Samuel Young.)
2. The operators/applicant were present at the Public Inquiry inthe form of Mr John Walker and he was represented by Mr PatrickSadd, Barrister, instructed by Kingsley Wood & Co, Solicitors,Kilmacolm (Ms Arbuthnot). The witnesses for the operator were MrWalker himself and Mr Brian Marlin and Mr Brian Smith. Witnessesfor VOSA were Bus Compliance Manager Mr H Findlay and BusCompliance Officers; Vehicle Examiner Mr E Flynn and TrafficExaminer Ms. N Martin. Witnesses from Strathclyde Partnership forTransport were also available. Mr Brian Smith was not present atthe continued hearing and thus I was not able to question him onhis evidence in chief. I had expected his attendance.
3. At the commencement of the Inquiry, I confirmed with Mr Saddthat he had received the five Public Inquiry Briefs and that Iwould take into account all material contained therein (there wasone letter which I withdrew from the Barrhead Brief and tore up toindicate that I was not taking it into account and no furtherreference will be made to it). There was an addendum which Mr Saddhad also received. The Vehicle Examiner produced three furtherprohibitions and I had regard to those. A folder of statement andproductions for the operator was lodged and it was supplemented byadditional productions including copy sample PMI reports and copyannual test certificates for 5 vehicles produced at the continuedhearing. I required the originals and two further annual testcertificates and Mr Marlin's CPC certificate to be produced. Irecord here that I have read the operator's productions, most ofwhich I was taken through during the course of the Inquiry.
4. In view of the volume of the contents in the Public InquiryBriefs and also that in the main, the contents were non contentiousexcept in relation to certain matters raised during crossexamination, the contents of the five Briefs and the Addendum weretaken as read into the Public Inquiry record. Thus oral evidencedid not need to be given by many of the witnesses and crossexamination was limited to particular clarifications andexplanations and I have taken the cross examination evidence intoaccount.
5. A further matter being a complaint against First Stop was raisedin a supplementary call up letter of 27 March.
6. Mr Walker read out a 45 page statement and supplemented that byreading out certain of the productions and also answering furtherin questions from Mr Sadd and also from myself. Similarly,witnesses Messrs Marlin and Smith read out their statementssupplemented in the case of Mr Marlin by further questions from MrSadd and myself. Mr Smith was absent from the continued hearing.
7. Mr Sadd made preliminary submissions in relation to a reportdated 25 October 2006 which bore the name of Mr Findlay and wassupplemented by a report from Bus Compliance Officer, Ms Leslie, of23 October 2006 and related monitoring tables for a monitoringexercise which took place between 11 and 27 September 2006. MrSadd's submission can be summarised thus, that the companiesinvolved had not had prior notice of the contents of these reportsin contrast to later bus compliance monitoring exercises where thetables of findings had been put to the operator such that theoperator could give a contemporaneous response. The operator was nolonger in possession of the records which would allow for aresponse to be made in detail to the allegations concerning runningin September 2006. I dealt with that response by indicating thatthe inclusion of that material within the Public Inquiry Briefs(and I record here that some material was common to several Briefsand that Mr Sadd and I agreed and had an understanding that thecontents of the Briefs would be read across the whole cases) wasfor the purpose of setting the scene for later work and that it wasnot my intention to use these particular reports as a foundationfor any consideration of a penalty under Section 39 of theTransport (Scotland) Act 2001, the operator not having the chanceto consider whether there was reasonable excuse. Thus I declined toremove the reports from consideration at the Public Inquiry, but Iwas clear in my own mind and wished to make it clear to Mr Saddthat it was not my intention to use that material for considerationof action under Section 39, rather it was contextual to thedifficulties faced by the Bus Compliance Officers in monitoringthese operators' services.
8. Mr Sadd properly drew my attention to financial standing beingonly mentioned in the call up letters in respect of Barrhead whichcontained a variation application and Flying Scotsman which was anew application. In the folder for Barrhead was an indication ofwhere financial standing could be provided. It was left that if Ifelt that financial standing was material to any decision I took,whether by way of further consideration of the Barrhead variationor the Flying Scotsman application, that I would seek purificationof the financial standing information and also to be satisfied thatthe finance being provided for those operations was not the samefinance relied on by the other licences. Thus the matter offinancial standing was not dwelt on at any length in the Inquiryand effectively was reserved.
9. Mr Walker has been Director of two revoked licences beingDewvale Ltd PM1896 and Bellview Coaches Ltd PM2319 in relation towhich Mr Walker was disqualified for 2 years. I saw Mr Walker atPublic Inquiry on 28 April 2005 when I considered his applicationfor a standard national public service vehicle operator licencewith authority for 6 vehicles on behalf of Barrhead Bus CompanyLtd. I issued a written decision in that case on 7 June 2005 andthat decision formed part of the Barrhead Brief. I have had regardto its contents and to what was said to me by Mr Walker at thatInquiry, all as set out in my decision and as further referred toin this decision.
10. In his application for the Barrhead licence, he disclosed thathe was involved with Local Bus Company Ltd and Gullivers Travel Ltdand that he had been involved with Bellview Coaches. He did notdisclose involvement with Dewvale Ltd about which I only learnedafter the Public Inquiry. What he told me about Gullivers was thathis sister, Mrs Margaret Gulliver, was sole Director and he was theTransport Manager and Company Secretary and that he ran thatbusiness for his sister. Paragraph 6 of my decision refers. At thatPublic Inquiry I was truly curious and puzzled as to why Mr Walkerwas not simply seeking an increase in the authorisation under hisLocal Bus Company licence rather than seeking to operator underanother corporate entity. He gave me answers which I recorded atparagraphs 8, 9 and 10 of my decision. In response to my furtherqueries, he gave me further answers recorded at paragraphs 13, 14,15 and 17. As I did not have any adverse evidence in front of me, Igranted the Barrhead application but in the paragraphs in which Iconsidered the evidence, I made certain observations including somewords of warning and I return to these later in this decision.
11. Local Bus Co. Ltd was called to Public Inquiry in April 2002and a 20% fuel duty rebate was ordered.
12. By application dated 13 June 2006, Barrhead applied for avariation to increase its authorisation from 6 vehicles to 60. Atparagraph 9 of the application, it was stated that "We havepurchased First Stop Travel (LLC) Ltd and McKinnon Coaches. We wishto surrender these licences and increase Barrhead Bus Co Ltd." Thusone matter for decision at the Public Inquiry was a decision onthat variation application.
13. The others matters which required to be considered were BusCompliance Officer Reports of 13 August, 26 and 28 November 2007,with evidence also from Strathclyde Partnership for Transport(SPT). At one point during the course of the processing of theBarrhead variation application, Companies House showed the companyas being in compulsory liquidation. This required to beinvestigated. Papers relative to that were within the Addendum forthe Public Inquiry and also within the folder for the operator. Theliquidation had been rescinded following payment of a fuel bill.
14. For the Gullivers Travel case, I had Bus Compliance Officerreports concerning registered services and I also had CompaniesHouse records concerning the directorships within Gullivers TravelLtd. At no time does Mrs Margaret Gulliver appear as a Directorwithin the records of Companies House. Ms Janice Spence is shownappointed as a Director on 27 March 2002 and as Secretary on 5 May2003. Mr John Walker is shown appointed as Secretary on 27 March2002 and as a Director on 1 February 2003.
15. For the Local Bus Company, I was considering Bus ComplianceOfficers' reports and also the records of Companies House.
16. For First Stop Travel LLC Ltd, as well as the records fromCompanies House, I was considering Bus Compliance Officers'reports, a Vehicle Examiner's report and a Traffic Examiner'sreport in which the apparent personation by the operator of acompetitor operator was alleged.
17. In relation to the Flying Scotsman application, Mr Walker isthe sole Director with the nominated Transport Manager, DavidJones. This application was called in order that I could considerall aspects of a new application and in particular the repute ofthe company and its Director. To question 12 of the applicationthat is "Have you or anyone included in this application ever hadan operator's licence application refused or revoked on this or anyother Traffic Area", the answer "No" is given. That application wassigned by Mr Walker on 2 March 2007 under the declaration that thestatements made in the application are true. By the Public Inquirydate of 13 March an amended application had been lodged on 11 Marchin which to question 12 the answer given is Yes and Dewvale Ltd andBellview Coaches are given and Mr B Marlin is nominated asTransport Manager (no CPC for him was lodged however and thatbecame a matter continued for its production).
Bus Compliance Officers' Findings
18. Bus Compliance Officers monitored First Stop Travel, GulliversTravel, Local Bus Co and Barrhead services on dates in September2006. Difficulties were experienced in identifying which operatorswere operating particular registrations and some vehicles wereunliveried and without legal lettering and there were incorrectdestinations, route numbers and so on. A report was made of theOfficers' findings and sent to the Scottish Traffic Area office.The findings were not put to the operators for comment and MrFindlay's report of 25 October 2006 was a covering note to the VOSARegional Intelligence Unit. The reports disclosed matters ofconcern that required further investigation.
Barrhead services
19. On 29 January 2007 Barrhead applied to register PM1043162/3 and/4 and on 14 February to register /5. No letter of acceptance hadbeen issued and word came that these services were being operatedunregistered. On 4 and 5 April 2007 61 buses were observedoperating (details set out in the BCOs' schedules in their report).Information then came that the services had been registered and sothe timings were checked against the timetable. By letter of 18April the operator was asked to comment which the operator did.There was further confusion in relation to whether the serviceswere registered or not with Mr David Jones for the operator givinghis understanding in his letter of 26 April and Mr Torry, acaseworker of the Scottish Traffic Area giving his. If the serviceswere not registered then there was 100% non compliance ie operatinga non registered service.
20. On various dates in September and October 2007 (the detailsbeing in the BCOs' report) a monitoring exercise was undertaken onBarrhead's service 22 - a frequent service registrationPM1043162/2. Of 114 journeys expected only 36 were recorded andthese were in the livery of First Stop Travel with no "On hire"notices. This was a 27% unsatisfactory level. A copy of thefindings was put to the operator but despite reminder no responsewas received until a letter of 9 November from Mr Walker in whichhe cited road works at Renfrew Cross and also "difficulty inrecruiting quality staff for our company,that is no excuse. I havecancelled the service and will endeavour to supervise the qualityof service required until cancel date." (I record here that thisservice was cancelled with effect from 31 January 2008.)
21. In response to cross-examination Bus Compliance Officer MrMcKellar said that he was aware of major roadworks at Renfrew Crossbut that other operators seemed to be operating there. Asked incross examination if he was aware that another operator had soughtto vary its route due to the road works, he was not.
First Stop Travel LLC Ltd
22. On various dates in March 2007 (details given in the BCOs'report) BCOs monitored PM0002498/16 - the operator's service 38.Prior to monitoring the Officers had looked at the route and theoperation of it. On 23 February they noted that white unmarkedbuses were running as the 38, two buses displayed no legallettering and others had the address which is the correspondenceaddress of First Stop Travel. On 26 February BCOs undertook furtherobservations of the service and found no First Stop Travel service38 buses operating. On moving location on the route they foundinstances of the previously white unmarked buses displaying red andblue livery marked "Dicksons of Erskine Ltd" operating the FirstStop Travel 38. The BCOs considered this to be an attempt toconfuse members of the public who would normally travel on busesoperated by Dickson of Erskine. One of the Officers boarded M884XSC and travelled on it. The issued ticket showed it to have beenissued by First Stop Travel Ltd.
23. In the March monitoring exercise (detailed findings as appendedto their report) they narrated that they observed 331 departures ofwhich 94 were outwith the Traffic Commissioner's guidance. This wasan unsatisfactory provision of 28%. By letter of 26 March 2007 theoperator was provided with the observations and asked for comment.By letter dated 10 April Mr David Jones responded for First StopTravel. He wrote "In response to your recent monitoring exercise onthe above local service we accept your observations. The reason forthe erratic operation for this service is due to a failed businessdeal with the original operators of the service who trade asDickson's of Erskine. Dickson's of Erskine agreed to sell thecompany as a going concern to the directors of First Stop travel(LLC) which included all vehicles, staff, and goodwill, Firststopregistered with the Office of the Traffic Commissioner to operateservice 38 starting on the date of the agreed sale, as the date ofthe agreed sale approached Dickson's of Erskine had a change ofmind and acted unprofessionally by calling the deal off. First StopTravel had to make emergency purchases of vehicles to cover thecommitment of the registered timetable, unfortunately the timetableof events prevented Firststop from fulfilling the timetable asregistered as driver recruitment was a major problem due to theshort notice of the collapse of the deal. The directors ofFirststop Travel Ltd Registered the Name of "Dickson's of ErskineLtd" as previously planned and initiated a programme of vehicleroute branding which is still in operation, all vehicles used bythis company on route 38 are owned and operated by Firststop Travel(LLC) albeit in varying livery. We have operated the service withthe minimum of 12 vehicles from 10 March 2007 and as from today wehave allocated 14 vehicles to the service running duplicatevehicles at peak times."
24. On various dates in September and October 2007 (details intheir reports) the BCOs monitored frequent service PM0002498/23 -service 1. Of 102 journeys expected only 45 were recorded and therewere gaps. The BCOs calculated a 33% unsatisfactory provision asset out in the schedules to their report. Their findings were putto the operator. Mr Walker wrote on 9 November of difficulty inrecruiting quality staff, road works at Barrhead campus andreliability of vehicles. They had recruited overseas staff,replaced vehicles but had no control of roadworks. They now monitorservices daily and have seen a dramatic change in service quality.
25. There were complaints from the public relating to thereliability of PM0002498/20 - service 301. These were monitoredover 5 days in October and of 8 observations 4 were non compliant.It is an hourly service and the lateness of the 4 non compliantservices ranged from 9 to 12 minutes late. The operator blamedroadworks for 3 of these dates (his letter of 15 November) whichwas at odds with the BCOs finding that the buses were arriving ontime at Johnston Railway Station and then sitting there anddeparting 9 to 12 minutes late. The operator in his letter saidthey monitor the service daily to provide a better quality ofservice. (In cross-examination BCO Mrs Riley stated that she didnot know of the roadworks but her evidence was later corrected byMr Findlay on her behalf, she having checked her notebook and foundthat there had been roadworks on the bypass but no significantdelays.)
Local Bus Company Ltd
26. Monitoring of this particular company's service was in 2006 andattached to Mr Findlay's report of 25 October 2007. There was nomore recent monitoring of this particular service.
Gullivers Travel Ltd
27. As well as the monitoring in 2006 already referred to above,this company was monitored in 2007. On various dates in earlyJanuary 2007 (details in the report) BCOs monitored servicePM1006510/4 operated as the 21/4. The operator had applied on 26October 2006 to cancel the service effective 6 February 2007. Of 65journeys expected all failed to operate. On 10 January 2007 theBCOs observed a service 4 destination Neilston in livery of FirstStop Travel which did not have such a registered service. Theyconcluded that this vehicle was being operated prematurely as aservice PM1006510/5 had been registered by Gullivers with effectfrom 6 February 2007.
28. Monitoring continued in late January of the existing service21/4 and what could be the prospective Gullivers service 4 at atiming point for both services. Service 4 was operating withPaisley and Neilston as the destination whereas service 21/4 failedto operate. Of 81 observations service 4 was 100% non compliant,Service 4 was found to be operating prior to the commencement dateof 6 February 2007. A letter was sent to the operator for commentand reminder made. On 13 February Mr David Jones phoned and he wasgiven the BCO information. Mr Jones responded and arising from thatresponse the BCOs recalculated their observations using the service21/4 timetable rather than the number 4. Of 149 observations 130were non compliant - 52 early/late; 78 failed to operate amountingto a 87% non compliance. If analysed as if the prospective service4 the level of non compliance was 80%.
29. BCOs met Mr Jones on 27 February 2007. He produced letters of15 November and 3 January 2007 from Arriva Scotland West Ltd toGullivers to explain why service 21/4 was not operating atBraehead. The Arriva letter of 15 November was from the BraeheadBus Station supervisor who said that monitoring of the 21/4 hadshown failure to operate on 13 and 14 November and that on 14November Mr McCartney of Gullivers informed him that the servicewould no longer serve Braehead bus station. The letter stated thisto be a blatant disregard of the rules and conditions for use ofthe bus station and will jeopardise future plans for re-entry tothe bus station. The letter of 3 January was from Mr M Rogers ofArriva who noted the failure to comply with registered serviceparticulars and the exchange between Mr McCartney and the BusStation supervisor. He referred to the bus station conditions ofuse and advised that the service 21/4 by being in breach would notbe allowed to operate via Braehead and that the TrafficCommissioner's office should be informed of timetable amendments.The BCOs further analysed their findings and concluded that theservice 4 was operating early and the 21/4 had ceased. Mr Jonesreplied for Gullivers on 12 March and the BCO responded on 16 Marchclarifying points which the operator accepted on 19 March as acorrect summary but with mitigating circumstances. In crossexamination Mr McKellarl considered that Mr Jones was confusing theissue. The cause of the problem was the operator failing to turn upat the bus station. Mr McKellar was not privy to the actions ofStrathclyde Police.
30. Mr Hugh Findlay manages the BCOs. The prime evidence was givenby the BCOs with Mr Findlay's role being administrative. He wasasked questions both by myself and by Mr Sadd but this evidence waslimited as it was difficult to pull Mr Findlay away from his 2006involvement and he was unprepared for questions on complaintsreceived in relation to the First Stop Travel service and declinedto reveal the source of the information which triggered inquiries.The 2006 monitoring had been abandoned as it was very difficult forthe BCOs to establish which operator was operating which service,there being incorrect destinations and incorrect legal lettering ornot what expected. Sometimes they have had to resort to DVLA toestablish who is operating the bus, and they had to do this forDicksons of Erskine Ltd as there was no operator licence for thatcompany but the legal lettering indicated First Stop Travel. Heconsidered that the public would think Dicksons of Erskine Ltd wasDicksons of Erskine and only the ticket would show First StopTravel. The 2006 report showed four companies interchanging onspecific services. He had received complaints about Dicksons ofErskine Ltd but had not put these into report form and so could notgive dates and specifics. He had a duty of care towards complainerslest there be repercussions against a complainant.
Evidence of the Traffic Examiner - First Stop Travel LLC Ltd
31. Traffic Examiner Ms Martin's evidence was in relation to theFirst Stop Travel service 38. Her evidence was supported byphotographs and the bus ticket purchased by the BCO Ms Hughes(since a Traffic Examiner) on 20 July 2007. She found the vehiclesoperated to be displaying the company name of Dicksons of ErskineLtd and an address of 1 Muriel Street, Barrhead. By virtue ofsection 67 of the Public Passenger Vehicles Act 1981 and regulation45 of the Public Service Vehicle Regulations 1981 operators mustdisplay the name of the owner of the vehicle. There was nothing baran operator licence disc to inform passengers that the service wasoperated by First Stop Travel Ltd. The absence of legal letteringmade it difficult for the public to know who to complain eg inevent of an accident. On several buses there was a sign advertisingthe service as Dicksons of Erskine Ltd. The significance is thatthe livery of the buses is similar in name, design and colour toanother operator Dicksons of Erskine operating a service on thesame route thereby confusing passengers. Traffic Examiner Ms Hughesboarded on 20 July and the ticket issued to her was in name ofFirst Stop Group and she was told the return could be used on allDicksons of Erskine buses.
32. On 10 August Traffic Examiners checked the 38 operated by FirstStop Travel at a timing point at Bellahouston. The timetablefrequency is 20 minutes but 8 buses operated in a timescale between3 and 9 minutes apart. Later in the day when the timetable providesfor every 10 minutes this did not happen. On occasions two busesappeared at the same time when there appeared to be no need tooperate two together or as frequently as there were few passengerson board. Her findings were set out in a schedule which listed thetimes, registration numbers, passenger numbers where these couldnot be counted (unobserved meaning could not be counted). Asked byme what she considered was going on she replied that thesefrequencies would be to the detriment of the operator Dicksons ofErskine which had an operator licence whereas there was no licenceissued to Dicksons of Erskine Ltd. She lives in the area and soknew that Dicksons of Erskine has a good reputation in that area.There were signs in the Dicksons of Erskine Ltd buses stating theavailability of an all day ticket for £1.80 and Examiner MsHughes had been told it could be used on all Dicksons of Erskineservices. A complaint which the Examiners had been asked toinvestigate (from a member of the public) was borne out - that isthat a ticket could not be used on Dicksons of Erskine's servicesand that it was First Stop Group on the ticket. She believed thatthe Dicksons of Erskine Ltd service was undermining that providedby Dicksons of Erskine. Members of the public can be quite loyal towhich bus company they use. As of the day of the Inquiry theservice was still being run in that manner.She was shownphotographs in the operator's productions of the Dicksons ofErskine and Dicksons of Erskine Ltd vehicles and the differentlocation on the vehicles of the names.
Evidence of Mr John Fender and SPT
33. Mr John Fender is the Assistant Bus Agencies Officer ofStrathclyde Partnership for Travel which acts as an agent for 11local authorities including school transport. In the Barrhead briefthere were statements from SPT inspectors who had monitored aspectsof Barrhead's registered service PM1043162/4 number 19 on 4 April2007 when they saw the service being operated in First Stop Travel(LLC) Ltd livery. Mr Fender had nothing to add to this but I askedhim about some general matters. He confirmed that the bus stancesat Braehead were part of the commercial development there andArriva got the job of administering them. In general termsregulation of a bus station will minimise difficuties forpassengers and the allocation of slots can be quite complex eg ifan operator's vehicle is not where it is meant to be. On the matterof legal lettering and livery, he would expect an operator tooperate in its own livery or if hired in to clearly identify that.Legal lettering is part of Construction and Use and helps anyonewho is monitoring to know to whom an individual vehicle belongs.The public does not look at legal lettering but looks at the liveryto see if that is their bus and that is why operators differentiatetheir livery as much as possible.
Evidence of the Vehicle Examiner - First Stop Travel
34. The operator's vehicles have attracted 27 prohibitions sinceFebruary 2003. Other than three most recent the remainder weretabulated in the Vehicle Examiner's report. They broke down into 13immediate, 12 delayed and 2 variations. Two being that for M884 XSCon 24 January 2008 for a windscreen wiper inoperative and otheritems and for M349 JBO on 5 July 2007 for a tyre worn beyond thelimit were S marked. His written report contained a narrative ofthe immediate and S marked prohibitions. A maintenanceinvestigation was carried out on 21 August 2007 and foundunsatisfactory. He concluded that the nature of the prohibitionswas such as to indicate the vehicles were not being maintained in afit and serviceable condition. The findings of 24 January were putto the operator and in particular that the driver had said that thedefect (the wiper) had been repaired the previous week. The driverhad to change vehicles in a hurry and had not done his check. Theoperator in response (letter received 7 February) refuted thisaccount and denied that there had been poor workmanship or that thedriver had failed to do his check. The wiper arm had broken loosedue to being used on a dry screen and when the wiper failed thedriver decided to continue on the last 15 minutes of his run. Amissing emergency hammer had been stolen and a glass cover has beenput in to discourage future theft. The three recent prohibitionswere all for brake related matters. The Examiner was taken throughmany of the prohibitions in cross-examination the thrust being thatapart from the S marked ones those others could have happened atany time and did not reflect on the operator's maintenance systems.The Examiner responded to individual instances - some of theprohibitions he had imposed himself, others not - by pointing tothe build up of prohibitions as being the concerning feature and aspointing to the maintenance not being as it should be and not justbecause this was an ageing fleet.
35. After the operators' witnesses had given their evidence onmaintenance related matters, the Vehicle Examiner was asked for hisview. He considered the maintenance documentation to becomprehensive but could be improved with odometer (though not soimportant for PSVs as HGVs) and brake readings. He was only seeinga sample. The forms looked great and it would depend if they stuckto the the regime introduced by the experienced Mr Smith or if hedisappeared what would happen. In the past driver defect reportshad not been signed as rectified.
Mr John Walker's evidence
36. Mr Walker's evidence took the form of a lengthy writtenstatement which he read out and answers to questions from Mr Saddand myself. I have had regard to all of the statement and answersand here paraphrase the material points of his evidence. He beganhis bus ownership career with the trading name Dewvale laterincorporated to Dewvale Ltd. He then operated as Bellview CoachesLtd. The Dewvale licence was revoked on 1st August 2005 onmaintenance grounds and Bellview Coaches Ltd licence granted thesame day. It was revoked in June 1997 for maintenance andprohibitions and he was disqualified for 2 years. He then becamethe successful owner of 3 pubs and with those funds went back intobuses. He came back in as the Local Bus Company Limited with 6vehicles and operating in Paisley. Local Bus was at Public Inquiryin April 2002 - bus monitoring case - and warned and a fuel dutyrebate penalty imposed.
37. His involvement with Gullivers stated about 2002. His sister,Margaret Gulliver, had operated Gullivers since April 2002. Hereferred to the Barrhead brief document 7 paragraph 6 (my PublicInquiry decision of 7 June 2005). When he bought Gullivers thelicence authorised 6 vehicles and he ran Gullivers and Local Busout of the same operating centre. He then applied for the BarrheadBus Company Ltd licence in January 2005 and this was heard atPublic Inquiry. He recalled my reservations about his operations. Iexpressly put the evidence he gave me about Gullivers at theInquiry in 2005 and contrasted that with the Companies House recordfor Gullivers which nowhere shows Margaret Gulliver and he saw whatI was seeing. I put it to him that he had lied to me and he said itlooked like that but it was not the case. I put it that CompaniesHouse had not made it up. I also put to him the false declarationby Margaret Gulliver in the licence application and he respondedthat he could see what I was bringing to his attention. He told methat he had been telling me the truth.
38. The companies have continued to operate separately withdifferent drivers for the various companies and the buses not beingshared apart from on 4 and 5 April 2007 when First Stop buses (notdrivers) were used for Barrhead services 9,19 and 301. Maintenanceis shared but otherwise the companies are separate and profitable.He is the sole shareholder in Barrhead.
39. He bought First Stop Travel (LLC) Ltd and MacKinnon Coachesfollowing an approach from Samuel McPherson of Slaemuir Coaches inMay 2006. A formal contact was set out and the purchase went aheadin June 2006. He then applied to increase the Barrhead licence from6 to 60 and to surrender First Stop and McKinnon. He wanted tobring First Stop under Barrhead. The remaining companies wouldcontinue as independent units but in reality they are all part ofthe same group (not in sense of legal holding company.) He may -later clarified to he will - bring all of the companies under aholding company First Stop Group. Currently there are 65 vehiclesoperating from 1 Muriel Street. They employ traffic officers andinspectors and have done since June 2006 (details of duties given).They employ 87 staff. They test for drugs and alcohol mis-use, noone has failed (the test records book for 2008 produced). In theyear to February 2008 they carried 4,773,449 passengers - 358,906in February. They train their drivers and have employed Polishdrivers and have English classes and notices in English and also aPolish supervisor. He was not aware of the reputation of First Stopwhen he bought it.
40. Local Bus Company Ltd is a private company of which he wasappointed Director in April 2002. His wife, formerly a Director,became Company Secretary. The licence was granted in 2000.
41. He described the maintenance systems with reference toproductions - systems introduced since June 2006. They haveintroduced a system of dedicated bus drivers to ensure familiaritywith route and vehicle. Maintenance is in house - detail given withreference to productions. On 3 March 2008 they employed Brian Smithas Engineering Director and he has undertaken an audit of the fleetand giving advice. In November 2007 a full time tyre fitter wasappointed so there is a tyre service area at the operating centre.All of the vehicles have correct legal lettering (photographsproduced). He has invested in new electronic screens, workshopfacilities, and equipment. They have introduced daily work sheetsfor inspections. A system of oral warnings for drivers has beenintroduced gradually.
42. He took issue with the S marked prohibitions. He consideredthat of 5 July 2007 to be attributable to the vehicle's removal forpolice inspection following a road traffic accident on 2 July inwhich an elderly man died. However he accepted that if the defecthad been present on the morning of 5 July that was a seriousfailure on part of the driver. They complained about the S markingof 24 January 2008 as the wiper was repaired 10 days beforehand andthe driver had used his defect card.
43. In the past with First Stop drivers were randomly allocated tovehicles. Morale was low and the company was run down, the fleettired and he had introduced changes and was making progress.
44. In relation to the BCO monitoring in 2006 that had not been putto them and they were first aware of this monitoring when called tothis Inquiry. Their records for that period are no longeravailable. David Jones is no longer with the company. So noresponse can be given to the details of this monitoring.
45. His evidence in relation to the other BCO monitoring exercisesfor the respective companies:
46. Barrhead - 4 and 5 April 2007 - registrations /3,/4/ and /5 -respectively services 9,19 and 301. Mr David Jones applied inJanuary on Barrhead's behalf for these three services with a startof 2 April 2007. The applications were made in anticipation ofincreased authorisation on the Barrhead licence. Decisions on theapplications were awaited but a check of VOSA's website showed theservices and the start date of 2 April. A call was made to theTraffic Area Office and a member of staff told them that they wereobliged to operate the services or contract them out to anothercompany. On this basis Barrhead put the services (as services 9, 19and 301) to First Stop which had sufficient vehicles. Thus theseservices were in First Stop livery.
A further call to a different caseworker in the Traffic Area Officerevealed that the services had not been registered as letters ofacceptance had not been issued. The services were withdrawn butonce they got permission to run they did so. In this context it wasaccepted that the services were unregistered and therefore noncompliant.
47. Barrhead - September and October 2007 - 22E - it was acceptedthat the service was unsatisfactory and the reasons were roadworksat Renfrew Cross causing delays (unlike Arriva they had not soughtan alteration to their route) and staff recruitment difficulties.The service has since been cancelled. A lost mileage sheet for 19September 2007 was produced.
48. First Stop Travel - dates in March 2007 - service 38 - it isadmitted that there were problems with the service and Mr Jonesresponded to VOSA on 10 April 2007. The service was registered inanticipation of purchasing the business of Stuart Dickson whotrades as Dickson's of Erskine. The latter had agreed to sell as agoing concern to First Stop Travel the deal including staff, goodwill and vehicles. At short notice Dickson's of Erskine reneged onthe deal. Thus First Stop had a registered service and insufficientvehicles and drivers. They could not recruit sufficient driversimmediately but the service is now operational. Initially the buseswere unmarked in white and yellow but then displayed the livery"Dickson's of Erskine Limited" even though the deal fell through.All of the vehicles on the route were owned and operated by FirstStop although the liveries varied. (Photographs and ticketsproduced). In answer to questions from me relating to this matter,he agreed that he had brought no evidence of this deal, just hissay so. He set up the limited company to keep the good name as itwas an established name. No operator licence was applied for. Heliveried the vehicles in Dicksons of Erskine Ltd even though hisBarrhead variation application was in by then. He made a commercialdecision to run the service as Dicksons of Erskine Ltd. He deniedthat he was misleading the public or being predatory. He wascommitted to purchasing the vehicles. The deal with Mr Dickson didnot involve vehicles or drivers - Mr Dickson was a sole trader andso there was no business to buy other than goodwill. Given thatanswer I put it that Dicksons had a good reputation to which hereplied that he used goodwill loosely. I put it to him that hewanted to kill off the other route - which he denied. He admittedthey had problems operating the route.
49. First Stop Travel - dates in September and October 2007 -service 1 - He accepted that the service failed to comply. Theyfound driver recruitment difficult as the company had a poorreputation. Also there were roadworks at Barrhead. The vehicleswere old and unreliable. They recruited from Poland and havetrained Polish drivers. They also upgraded the fleet by purchasingsecond hand buses and painting them in First Stop livery andfitting electronic destination equipment. The service has improved.
50. First Stop Travel - dates in October 2007 - service 301 - Herecognised that the findings were unacceptable. There were majorroadworks at the Johnstone bypass. Also a driver was sitting at therail station. The service has been cancelled.
51. Gullivers Travel - dates in January 2007 - services 21/4 and 4.There were difficulties at Braehead shopping centre, at the busstation which is administered by Arriva. Gullivers encountereddifficulties getting into the bus stances and there was a bus warbetween competing operators. There were occasions when their buseswere not allowed in by Arriva. They decided to cancel the 4/21 andto avoid the Braehead terminus and had authorisation to cancel theservice from 6 February and start the 004 (new registration /5)from that date. In the meantime they stopped running as far asBraehead stopping instead at the Escape complex and showing theroute number as the 4 and not the 21 so that passengers would notexpect to be taken to Braehead. They did not tell the Traffic Areaoffice of this.
52. There was correspondence between the company and Arriva. Hedenied that they had told Arriva on 14 November 2006 that the 21/4would no longer go to Braehead. There was no point in this as theyhad paid the departure charges. Mr Jones' letter of 12 March 2007set out their position that is that the situation developed afterthe altercations at Barrhead bus station. He accepted the pointsmade by the Bus Compliance Officer Mr McKellar in the letter of 16March 2007. They felt that they were dealing with matters in theinterests of everyone including safety. He accepted that they werenot operating in Gullivers livery.
53. Mr Walker has been operating buses for 15-18 years so I put itto him that he would know that a bus station has to operate inproper order which he agreed. It was his view that Arriva wereoperating the bus station in a prejudicial manner. He did not gohigher to complain. He accepted that if their buses were not thereat the right time that would make stance management difficult. Hesaid it was a daily struggle to operate from that bus station. Iput it to him that the issues raised in the Arriva correspondence(docs 7A and 7B - which refer to not meeting the registeredparticulars, vehicles not carrying proper legal lettering oridentifiable company) were just the issues being found by the BCOsand the Traffic Examiners and that there was a theme, a threadthrough all the evidence and he replied that it could be read thatway.
54. Flying Scotsman (Roadtrain) Ltd t/a the Flying Scotsman wasincorporated in September 2006 with him as Director and wife Maryas Company Secretary, the operating centre at 1 Muriel Street,Barrhead. The nominated Transport Manager was Mr David Jones but isnow Brian Marlin. They applied for a PSV licence in March 2007 for10 vehicles with the purpose of operating a roadtrain vehicle on atimetabled service in Glasgow as a tourist service. He had produceda leaflet. He stated in evidence that Glasgow City Council were infavour and had endorsed it and it will run during the CommonwealthGames. However when challenged by me as to who in Glasgow CityCouncil had endorsed the plan he had to admit to me that no one hadie he was not truthful. He accepted that the application form forthe licence contained a wrong answer at question 12. David Jonescompleted the form and he had signed it without checking the form.He regarded it as common knowledge that he had licences revoked buthe could not say if Mr Jones knew. It was not intended to deceivethe Traffic Commissioner's office and he apologised. I put it tohim that he had hoped it wouldn't be spotted which he said was notthe case, it was an administrative error.
55. Mr Jones has gone to Spain and is of ill health. Mr Walkercould not recall when he was last in the depots but it could havebeen April/May last year. He had nominated Mr Jones and now MrMarlin for the Flying Scotsman licence as with the Public Inquiryhe felt that may be he was Transport Manager for too manycompanies.
56. The Group employs 2 full time traffic officers in the officeand six inspectors (one of them Polish - photographs in thebundle). Within the bundle of productions for the operator was astatement from Mr James Smith which set out his duties asrevenue/schedule inspector for the Group.
57. Asked by his counsel that given that I would have to giveserious consideration to revocation and to put him out of businesshow he could persuade me that I could trust him and let him be inbusiness, he responded that he had admitted to his faults, that hehas always been pro-active. Any faults identified have beenresolved. They ask for advice from VOSA and the STAO. The Group isgoing in the right direction. He accepted that if there was notrevocation that some action would have to be taken. If theCommissioner stepped back from revocation he accepted that therewas room for improvement and he took that on board. The guys in theyard see him taking positive steps to iron out problems and get thebuses to standard.
Mr Brian Marlin's evidence
58. Mr Marlin was present and gave evidence. Mr Marlin has been inthe industry for 14 years starting as a driver with First Glasgowand being promoted. He has gained several CPC modules and startedwith First Stop Group in April 2007. When Mr Jones went off sick hewas made acting Transport Manager (not in the licence sense of thatdesignation) under Mr Walker's supervision. He described his dutiesin assessing driver and vehicle needs for the day and monitoringperformance and dealing with service registrations and staffdiscipline. He also deals with SPT and with the other Councils tosee where roadworks are. He has told the traffic supervisory staffin the Group how important it is to adhere to the schedules and todo spot checks. He had read the BCO reports and discussed withinspectors and supervisors the importance of schedule adherence. Heis not the Transport Manager for First Stop. He has institutedre-training for inspectors and putting drivers on to their ownroutes. He has the total backing of Mr Walker. The system ofwarnings to drivers has been up dated and there is a more directiveapproach. He thought there was a need to improve bus inspectionsand room for improvement. With his pedigree in the industry he hadthe complete confidence of Mr Walker to whom he had access at alltimes. He himself goes out regulating the buses and can also drive.He leads by example. They have a revenue protection and scheduleinspector, Mr Smith (statement 3 in operator bundle sets out hisduties).
59. At the resumed hearing Mr Marlin was asked about hisinvolvement with Flying Scotsman and Glasgow Council. He had heardfrom Mr Walker that Mr Jones had been in touch with the Council buthe did not know anything more specific. Mr Marlin had arranged ameeting for later in the week with a Mr Taylor of the marketingdepartment of the Council. He had not told the Council they did nothave an operator licence for the venture, only that it was aconcept. There was no endorsement from the Council.
Mr Brian Smith's evidence (in chief)
60. Mr Brian Smith has 42 years experience in PSV working includingwith the large operators (Stagecoach, First, Arriva etc). He is anengineer and has an international CPC. He had entered intoemployment with the First Stop Group from 3 March 2008 and was inprocess of doing a full audit of the group's maintenance includingin a higher standard than at present. He believed the currentstandards were to VOSA standard but he was going higher. He hadintroduced reporting forms based on those used by him in formeremployments. He considered the Group to be progressive and with MrWalker they had identified the key issues. He understood Mr Walkerwas going to proceed with a fleet replacement programme ifBarrhead's application was granted. On the week of the Inquiry heintroduced safety inspection records (14 of operator's bundle). Thefitters and mechanics have taken on board the driver defectreporting and signing off fit for service. He had had to make surethe PMI sheets were signed off properly. His arrival had beenwelcomed in the company. He enjoys a challenge wherever he goes.The business has potential with a good yard, workshop and gettingpeople into shape, they want to work.
61. I record here as I did at the adjourned hearing that Iexpressed myself incredulous that the operator had not brought MrSmith to the second hearing. I engaged with Mr Sadd on this for itwas in my mind that an adverse inference could be drawn and that Iexpressed that on one view that Mr Smith was not present forperhaps the scales might have fallen from Mr Smith's eyes inrelation to Mr Walker's operation. I had questions for him.
Complaint in relation to an incident on 6 February 2008
62. A further call up letter was sent to First Stop Travel inrelation to a complaint from a Renfrewshire Councillor that on 6February 2008 one of its drivers had allowed schoolchildren todisembark at other than the bus stop and at a newsagent locationwhich meant the children had to cross the carriageway. The operatorhad not responded to the complaint despite reminder. The Councillorhad given the contact at First Stop Travel as a Mr Tom Morris andletters were addressed thus. In Mr Marlin's evidence he made outthat such letters would not have been opened but returned to sendergiven that there was no Mr Tom Morris in the company. That was whathe surmised and that was why he gave that answer. Yet he had seenMr Bowyer's statement and had seen the letters the previous week.However it transpired in evidence in form of a statement from MrMaurice Bowyer that the latter claimed to have dealt with thematter by responding by phone and in writing to Ms Dick of myoffice. Ms Dick did not receive that reply and he had not kept acopy.
In answer to the complaint Mr Bowyer's statement recorded thatdisciplinary action, a verbal warning, had been taken against thedriver and a copy of the record of that warning dated 29 February2008 was produced. Mr Walker was aware of the complaint when thesecond letter came in, thus it was received. He was aware that MrMarlin and Mr Bowyer were dealing with it. He took Mr Bowyer's wordthat a reply had been sent though he wished it had been e mailed.
Further productions required
63. At the end of the hearing I confirmed that I wished to seeconfirmation of the annual test certificates for the 7 annual testswhich it had been claimed had been passed first time this year -the operator claimed and maintenance documentation. It was agreedthat would be sent in to me in the week immediately following thehearing. In the event evidence of five tests was produced as wellas the maintenance documentation and Mr Marlin's CPC.
Closing submissions for the operator
64. Mr Sadd's closing submissions were lengthy (not a criticism butto flag that I paraphrase them herein).
65. The theme of his submissions was that Mr Walker had not taken acavalier approach to operating. He was attempting a root and branchchange in the Group. It has been a commercially attractive decisionto buy First Stop Travel but it was a hornets' nest and he has hadto live with the repercussions. He recognises that his situation isa serious one. The repercussions of not being able to continueoperating would be that 12 existing bus routes, the public servedthereby and the staff would all be affected.
66. He took too much on in June 2006 and the business was "runninghim" rather than the opposite. A comparison could be made of thestate of the First Stop buses when he took them over and how theyare now. He recognises he is at the brink. In evidence there werethe positive factors that he had been frank and robust and had notshirked my questions. He had already taken steps in 2007 to putmatters right - it was not reactionary to the call up letters. Heis hard nosed about business. His integrity is shown in what he wasdoing prior to the call up letters. Mr Marlin would not have wantedto deal with anyone who was "sharp". A view of Mr Marlin helps toget a better understanding of Mr Walker for Mr Marlin has longexperience of the industry and gave his evidence properly andhonestly and he has supported Mr Walker in spite of the real threatof the closure of the business.
67. On bus compliance it was submitted that I must regard theSenior Traffic Commissioner's Practice Direction and to look ateach report on its merits and in relation to the operators. Therewere different operators in this case. Reference was made to MrFindlay's 2006 report and how I would approach it, as background,and the context. Mr Walker had bitten off more than he could chewand bit by bit there had been progress until by now the confusionhas all but disappeared. Mr Walker had no notice of Mr Findlay'sconcerns in 2006. In December 2006 Mr David Jones was taken on toregularise First Stop. There was 100% non compliance found becauseit was taken that the routes had not been formally registered.However Mr Jones in the absence of hearing anything, and havingregard to the VOSA website, concluded that the registrations hadbeen granted and that the services had to run, therefore they wouldhave to be sub contracted. The operator was between a rock and ahard place. BCO Mr Gray was fair and recognised the confusion. Anypenalty should be a light one.
68. Barrhead service 22 - there were major roadworks at RenfrewCross - evidence not contradicted by the BCO Mr McKellar. MrWalker's letter of 9 November 2007 offered no excuse in relation tothe level of poor driving. There was difficulty in recruiting asword was getting round the close knit community of bus drivers thatthe business was in trouble.
69. First Stop was moribund as at June 2006 with poor serviceprovisions, poor maintenance and records, with an old fleet and lowmorale. I was referred to Mr Walker's statement at pp31-32 anddocuments 7A-D in the brief. The issue was the road works andreasonable excuse but there was also an admission of failure on thepart of the operator. Mr Marlin has introduced driver dedicatedroutes and that was an indication of how the business wasapproaching its task. That was a positive move.
70. For the Gulliver's licence there were the difficulties withArriva at Braehead and I was referred to the correspondence. In theoperator's bundle of productions there was a statement from MrMcCarthy dealing with what he had encountered. Efforts were made bythe operator and Mr Jones arrived to find a situation. I was askedto pay attention to the detail in the correspondence and also thecorrespondence in relation to whether services were registered ornot. There was the correspondence between Mr Jones and BCO MrMcKellar and Mr Jones at doc 8C in the brief accepts the pointsmade by the BCO. The decision was taken to stop the buses operatingbecause of the risk of exacerbating tension and exposing passengersto that tension. It was not in dispute that there was tension atthe shopping centre. What else could they have done - byde-registering and registering a new service they were seeking tobe responsible.
71. In relation to the "Dicksons issue" there was no evidence fromMr Findlay as to who the complainers were and so no evidence totest. The Traffic Examiner had given evidence of confusion yet thephotographs of the two liveries showed them to be distinctive intheir liveries. The tickets eliminated confusion. The operator hasnot operated without a licence and has given an account of how heoperated First Stop trading as Dicksons. Competition is legitimate.It was submitted that I did not have evidence to pass the thresholdof balance of probabilities. The allegation was serious andrequired a high standard of proof.
72. The background to Mr Walker taking on First Stop is critical toan understanding of what went wrong. On each occasion steps havebeen taken to remedy matters, with routes being cancelled and aproper and mature response given to the BCO findings. The fleet isbeing changed, drivers have been trained, there is contact with SPTand the STAO and so the operator was seeking to establish clearlines of communication with the regulatory authorities which wouldbe the key to the operator thriving.
73. There had been an assessment of the PVR and a culling of theroutes and that was important as giving insight eg pp 24 and 25 ofMr Walker's statement.
74. I was referred to the Transport Tribunal case of Andrews(Sheffield) 2003/300.
75. On maintenance and First Stop I was asked to look at what were"spontaneous" defects and what S marked and also the operator atcurrent date. The Vehicle Examiner thought the operator was tryingto get things straight. Mr Smith had been brought in and formsintroduced. There were translations in to Polish. From October 2007notices were up. A tyre fitter had been brought in and then therewas Mr Smith's auditing work. He recognised that I had shown mysense of disappointment at Mr Smith's non attendance at thecontinued hearing and prayed in aid that Mr Smith would not havebeen able to assist with anything pre-March 2008. Mr Smithconsidered the business to have potential and that people wanted towork. The evidence was not of contingencies but of what had beenput in place. I could come to a finding although I had not testedMr Smith as I had the evidence of the Vehicle Examiner. This wasnot a culture of non-compliance. The regularity of spontaneity ofdefect goes beyond the age of the fleet into systems and that wasbeing addressed "as we speak".
76. On Flying Scotsman and the application form and that it is afalse answer to question 12, what is at issue is the motivation andwhether deliberately intended to mislead. Mr Walker's evidence wasof a negligent mistake and not an intention to deceive. It would beabsurd to deceive and why take a risk or attempt to conceal arevocation when at the Barrhead Public Inquiry these issues werecanvassed. He had put in the information in the past.
77. At the date of the form there was no history or any of the BCOevidence so he had no motivation to conceal. The maintenance was tobe done at 1 Muriel Place. It was his signature so not a good jobof concealing his involvement.
78. I was urged to conduct a balancing exercise appropriate to theissues. I should ask if this was someone minded to change and happyto endorse the culture of compliance. The Flying Scotsman issue canstand alone. It was seen that I had doubts as to his veracity butMr Walker was asking to carry on operating as he can get it right.
Consideration of the evidence and my decision
79. Findings in fact
1. Mrs Margaret Gulliver has at no time been a Director ofGullivers Travel Ltd. She thus made a false declaration in theapplication for a licence for Gullivers Travel Ltd dated 9 April2002.
2. Mr John Walker (date of birth 13.2.61) was appointed as aDirector of Gullivers Travel Ltd on 27 March 2002 and again on 1February 2003.
3. At a Public Inquiry on 28 April 2005 at which he sought alicence for Barrhead Travel Ltd Mr John Walker told me that hissister Mrs Margaret Gulliver was the sole Director of Gulliver'sTravel Ltd and that he ran it for his sister. Given findings offact 1 and 2 above, I find that Mr John Walker lied to me at thePublic Inquiry of 28 April 2005.
4. In the application for a licence by Flying Scotsman Ltd Mr JohnWalker signed under a declaration that the statements made in thisapplication are true. To question 12 which asked "Have you oranyone included in this application ever had an operator's licenceapplication refused or revoked in this or any other Traffic Area"he responded No. Mr John Walker was Director of two revokedlicences being Dewvale Ltd and Bellview Coaches Ltd. I find that hemade a false declaration which he knew to be false and which he didto mislead any administrative officer dealing with the application.
5. In his written and oral evidence Mr Walker stated that purposefor which the Flying Scotsman application was intended that is atourist road train in Glasgow was endorsed by Glasgow City Councilwhen in fact no one in Glasgow City Council had given anyapprobation of any kind to the proposal. I find that Mr Walker liedto me.
6. I find that Mr Walker deliberately sought to mislead the publicand interfere with the local registered service operated byDicksons of Erskine and this he did by the creation of livery inthe name of Dicksons of Erskine Ltd, the use of the same servicenumber, the running of near empty buses and by references toDicksons tickets whereas in fact this was a First Stop service withno connection to Dicksons of Erskine which is a long establishedlocal operator in the area. I find that this was predatorybehaviour on the part of Mr Walker through his company First Stopand not in the interests of the travelling public or any partyother than him and his business interests and offended theinterests of fair competition. It amounted to personation. I findthat there was no evidence of Dicksons of Erskine Ltd applying foran operator licence. I find that there was no deal between MrWalker and Mr Dickson.
7. I find that there was confusion in the registration process forBarrhead service registrations /3 /4 and /5 and that it would beunfair to make an adverse finding against the operator in relationto the monitoring in April 2007. In relation to the monitoring ofservice /2 operating as the 22 I find that the operator failed tooperate the service in accordance with the registered particularsas found by the monitors - only 27% of journeys operatedcompliantly. I find that the operator has not satisfied me thatthere was reasonable excuse for the failure to operate to thisextent.
8. In relation to the operation of the First Stop Travel serviceregistration/16 I find that on dates in March 2007 as detailed inthe monitors' reports this service failed to operate according tothe registered particulars in that only 72% of journeys wereoperated. I find that the operator registered this service when ithad insufficient vehicles and drivers to undertake the journeys.
9. In relation to the operation of the First Stop Travel serviceregistration /23 on dates in September and October 2007, I findthat the operator's service failed to operate according to theregistered particulars in that only 33% of services were operated.
10. In relation to the operation of the First Stop Travel serviceregistration/ 20 monitored in October 2007 50% were non compliant(4 out of 8). I find that drivers were not departing on time andthat the non compliance was not attributable to roadworks.
11. I find that Gullivers did not operate the registered service21/4 according to the registered particulars and so its vehicleswere not at the Barrhead bus station at the expected times forarrival and departure. I find that by