Decision for S&J Burgin Ltd
Source: gov.uk (2025-10-24)

Written confirmation of the decision of the Traffic Commissioner for the North West of England for S&J Burgin Ltd

IN THE NORTH WEST TRAFFIC AREA

S&J BURGIN LIMITED – Licence OB1141652

& S&J BURGIN LIMITED – Application OC2080936

WRITTEN CONFIRMATION OF THE VERBAL DECISION OF THE TRAFFIC COMMISSIONER

Decision

Under provision of Section 26 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”), I direct that licence OB1141652 is revoked with effect from 23:45 on Thursday 06 November 2025.

Under provision of Section 13(5) of the Act I direct that application OC2080936 is refused as the applicant has failed to satisfy that the requirements of section 13B and 13C of the Act are met.

This operator, S&J Burgin Ltd, appeared before me at public inquiry on Thursday 09 October 2025 and was in attendance through director Mr. David Burgin.

Its Restricted licence was granted on 23 December 2015 and authorises one vehicle and one trailer. The operating centre is given as Glebe Farm Barn, Sheffield, S26, and inspections are stated to be undertaken every eight weeks by Wayne Athersych, Chesterfield Road, Sheffield.

On 03 March 2025 the company made an application for a further operator’s licence in the North West Traffic Area, seeking authorisation for one vehicle.

Background

This company came to DVSA’s attention as a result of a roadside stop on 11 February 2025 where it was identified that the MOT for the vehicle, NX17 KCY, had expired. Additionally, the vehicle was not specified on the operator licence, and – as it already had a vehicle specified against its single authorisation – this raised concerns that the licence authorisation was being exceeded. The vehicle was also identified as driving distances exceeding 100km from its base, putting into scope for tachograph rules which are not being complied with.

Subsequently, on 29 April 2025, a Traffic Examiner from DVSA conducted a follow-up visit at the operator’s premises and completed a “TE Visit Report”. That report raised significant concerns and concluded with a rating of “Report to Traffic Commissioner”. The report was scored 24, against a scoring guide which sets “0” as Satisfactory, “1-5” as Mostly Satisfactory, “6-10” as Unsatisfactory, and “11+” as “Report to OTC and/or consider for prosecution. As such, the score of 24 was of significant concern, and the operator was called to attend a public inquiry.

The Public Inquiry

A letter calling the operator was issued on 20 August 2025 and set out the reasons for the inquiry, along with some case management directions to be complied with. Those case management directions included a request to provide updated drivers’ hours records and recent maintenance records, for assessment and consideration.

At the commencement of the inquiry I set out the concerns; the options available to me for regulatory action; and my intention to focus, first, on the DVSA encounter with vehicle NX17 KCY, then consider the poor Traffic Examiner Visit Report and more recent records and, finally, give consideration to the application.

In evidence I found Mr. Burgin to an open, honest and credible witnesses. There was very little, if any, disagreement with the findings within the ‘Visit Report’ and the updated ‘Report for PI’. I was satisfied with the explanations provided in regard to the alleged use of a second vehicle and find it more likely than not this was down to a failure to update the VOL records. The operator had failed to change the vehicle, and was not, therefore, using two vehicles.

The failure to update the records was, however, the first of a long list of gaps within this operator’s compliance. I was told that the original vehicle, WX61 FAK had been involved in a collision putting it off road and eventually written off. Thereafter a temporary vehicle was used for two months, followed by “NX65” which was used for three years before being traded in for “NX17”. None of these changes had been recorded on the VOL system as required.

The MOT was missed as a result of the recent change of vehicles. The date for MOT had been recorded as that for the traded-in vehicle and not updated upon receipt of the new one. Disappointingly, at the inquiry, Mr Burgin told me that the scheduling for MOT was now held in the glove compartment of the vehicle. A vehicle which he, as the responsible person, did not drive. He had no wall chart and had no schedule held on his computer. He was, therefore, entirely reliant on his memory, or the drivers, picking up the MOT requirement. On account of the previous failing, I am not satisfied with this as an appropriate approach.

The reliance on the drivers identifying the need for an MOT, by checking the glovebox, is placed further in doubt as, in evidence, I explored how the drivers had missed the absence of an operator’s licence disc on the vehicle window. Exploration of driver defect reports identified further issues. As did a review and discussion of preventative maintenance inspection reports.

These records were – generally – not fully or correctly completed. Incorrect dates on defect records may suggest, at one end of the scale, that they were not produced contemporaneously or, at best, were not subject to any oversight. The failure to have effective oversight was further identified in respect of inspection sheets which had missing details not least the complete absence of any brake performance records.

Mr. Burgin in evidence suggested that the requirement was to test brakes at the vehicle’s annual test, completely unaware of the important requirements set out within DVSA’s Guide to Maintaining Roadworthiness regarding brake performance testing and risk assessment. This lack of knowledge is despite the Visit Report flagging, back in April 2025, that the responsible person (Mr. Burgin) did not demonstrate any continuous professional development. Mr Burgin advised me that he read some guidance, and reached out to a consultant – to the point that he was able to refer to a OLAT course – but even as at the day of the inquiry he had not completed any training nor signed up for a future course.

One area of improvement I could identify was within the area of drivers’ hours. Attempts have been made to ensure that a system for recording hours had been implemented and the DVSA confirmed that evidence of this was provided to them in advance of the hearing. Mr Burgin did confess, however, that he remained unsure as to the reading and understanding of the output reports and he has, to his credit, already arranged engagement with DVSA staff to assist in that regard.

Mr Burgin accepted that the standards required have not been, and are not being, met.

Decision – OB1141652

There are some positives in this case. Steps have been taken to use drivers’ cards and tachographs. The operator has a 100% pass rate at annual test (although this is only against a single vehicle on account of the poor record keeping by the operator), and three checks at previous roadside encounters were all clear. I also give credit to Mr. Burgin for attending the inquiry and being open and honest.

The negatives of this case are, however, lengthy and significant:
- Using a vehicle without an MOT, caused by a failure to have a proper system for forward planning;
- Failed to obtain any formal training despite this being flagged as a gap in April 2025;
- Failed to introduce a system for driver licence checks as per recommendation in April, providing only records of checks after the DVSA visit, and in preparation for the PI;
- No evidence of an effective driver defect reporting system, with no systems for oversight. Resulting in (i) incorrect records, (ii) some more likely than not prepared after the event; (iii) an inconsistent approach to recording nil defects; (iv) an absence of records of rectification; and (v) multiple driver detectable defects being found at maintenance inspections;
- No oversight of PMI records resulting in; (i) regular gaps in the completion of records; (ii) no review of driver detectable defects; and (iii) no evidence of a suitable assessment of brake performance;
- A lack of awareness of the brake testing requirements and the failure to provide a single brake test for the review period;
- Failure to provide evidence of satisfactory and relevant driver training;
- Noting that attempts have been made to improve the arrangements to ensure proper management of drivers’ hours and tachograph rules, these are not yet established with Mr. Burgin requiring further support from DVSA which is scheduled but not yet complete; and
- Failure to adequately respond to and address the failings identified with the DVSA TEVR despite the passage of time since.
On review of the evidence before me, and the responses provided by the licence-holder, I make adverse findings under provision of the following legislation:

26(1)(e) – that the operator provided a statement of expectation that has not been complied with, namely the signed declaration that all undertakings and conditions would be complied with

26(1)(f) – a failure to comply with the undertaking to have proper systems in place to ensure that motor vehicles and trailers, including hired vehicles, are kept fit and serviceable

26(1)(f) – a failure to comply with the undertaking to have proper systems in place to ensure drivers would report defects promptly and in writing;

26(1)(f) – a failure to comply with the undertaking to have appropriate systems in place to ensure rules on drivers’ hours and tachographs would be observed

26(1)(h) – that since the licence was issued there has been a material change in any of the circumstances of the licence-holder that were relevant to the issue of the licence, namely that the licence holding holder is no longer considered to be “not-unfit” to hold an operator’s licence.

On consideration of the Senior Traffic Commissioner’s starting points of regulatory action, as set out at Annex 4 of Statutory Document 10, I place this operator within the “Severe to Serious” category. I make this conclusion as I consider there have been persistent operator licence failures with inadequate response.

In consideration of regulatory action I am advised by the operator that any significant period of suspension would have the same effect as revocation. It was accepted that the nature of the business would allow smaller quantities of tarmac to be carried on smaller vehicles, or larger quantities to be delivered by other hauliers, but that this was not cost effective. I have considered these implications when making my decision.

2013/007 Redsky Wholesalers Ltd invites a Traffic Commissioner to consider the ‘Priority Freight Question’ in cases relating to Restricted licences. That question, posed in 2009/225 Priority Freight was, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?”. I answer in the negative. The evidence before me in respect of this licence, and the time that has passed since these issues were first brought to the attention of the licence-holder, is that it has not been sufficiently motivated to take corrective action. I am prepared to offer the benefit of the doubt to the operator and place the blame on lack of competence and knowledge rather than intent, but that lack of competence, and the failure to address it between the DVSA visit in April and this hearing in October, affects my ability to trust this operator to comply in future.

The Upper Tribunal reinforced the issue of competence and knowledge in the appeal of 2014/024 LA & Z Leonida t/a ETS
- “it does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime… As with any regulated environment, a duty holder cannot expect to argue ignorance of the operator licence requirements”.
On consideration of all the facts I conclude that any action short of revocation would be perverse in the circumstances. This operator must make a decision whether it wishes to avail of an operator’s licence or not. If so, then it must actively manage transport services to ensure that all conditions and undertakings are complied with. The alternative is to choose not to hold an operator’s licence and use smaller vehicles which are not subject to those conditions and undertakings. I remind Mr. Burgin that it remains his responsibility to ensure that those smaller vehicles are kept in a roadworthy condition at all times.

The Senior Traffic Commissioner reminds us, at paragraph 28 of Statutory Document 10, of the requirement to make decisions which are commensurate with the circumstances of each individual case and the purposes of the legislation, quoting 2013/046 Shearer Transport Ltd:
- “any regulatory action by the traffic commissioner should not be punishment in itself, but designed to assist in the promotion and achievement of the legislation. Clearly, such action can include an element of deterrence in order to prevent and discourage conduct that undermines the licensing regime.”
The purpose of revocation in this instance is to draw a line under this operation and provide Mr. Burgin and the other director with a choice on how to proceed. I hold back from any finding of disqualification; therefore, the operator is free to make a fresh application. Any application will be considered on its own merits, but I would propose that Mr. Burgin undertakes relevant training and that the operation would benefit from the support of a qualified transport manager or transport consultant to assist on an ongoing basis.

Decision – Application OC2080936

As with all applications, the burden lies with the operator to satisfy me that it can meet the requirements to obtain an operator’s licence. This includes, at Section 13B, the requirement to be “not-unfit” to hold an operator’s licence and, at Section 13C, the requirements to have satisfactory arrangements in place.

As set out above, I have found that this operator is no longer fit to hold an operator’s licence as a result of the failure to have satisfactory systems in place. Accordingly, I am not satisfied that those requirements are met for the purposes of this extant application.

Section 13(5) sets out that “If the traffic commissioner determines that any of the requirements that the commissioner has taken into consideration in accordance with subsection (1) or (2) are not satisfied, the commissioner must refuse the application”. As such, application OC2080936 is refused.

David Mullan

Traffic Commissioner for the North West of England

09 October 2025