Decision for NB Retail Cushions Ltd (OC2079985)
Source: gov.uk (2025-08-14)

Written decision of the Traffic Commissioner for the North West of England for NB Retail Cushions Ltd

IN THE NORTH WEST TRAFFIC AREA

NB RETAIL CUSHIONS LTD – APPLICATION OC2079985

PUBLIC INQUIRY HELD IN GOLBORNE ON 16 JULY 2025

WRITTEN DECISION OF THE TRAFFIC COMMISSIONER

DECISION:

This application for a goods vehicle operator’s licence is refused as the applicant has failed to satisfy the requirements of section 13A(2)(b) & 13A(2)(c) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).

This is an application for a Standard National Operator’s licence in the name of NB Retail Cushions Ltd seeking authorisation for 2 vehicles and 7 trailers. As with all applications, the burden lies with the applicant to satisfy the Traffic Commissioner that they meet all statutory requirements in order to obtain a licence.

Background

Director Nolan Woolhouse Brew was previously director on the following licences: - NB Cushions Ltd (OC1142438), whose Standard National operator’s licence authorised the use of 1 vehicle and 5 trailers and was revoked with effect from 11 July 2023. - Churchgate Transport Ltd (OC2062055), whose Standard National operator’s licence authorised the use of 1 vehicle and 7 trailers and was revoked with effect from 16 January 2025.

NB Cushions Ltd (OC1142438) was revoked after the company entered administration and failed to respond to correspondence from the Office of the Traffic Commissioner (“OTC”) regarding this in April 2023.

The Statement of Affairs from April 2023 – which is available via Companies House - states that NB Cushions Ltd had debts of over £1m when it entered liquidation. The director’s loan account stood at £247,000 with the amount “estimated to realise” being listed as “uncertain”. Creditors such as HMRC went unpaid and the Liquidator’s Progress Report of April 2024 stated that an agreement was reached with Mr. Brew to pay back by instalments £55,000 of the £247,000. The report claims that no instalment payments were made and the Liquidator submitted a report concerning Mr. Brew’s conduct as a director to the Department for Business, Energy & Industrial Strategy.

Correspondence was sent by the OTC on 12 May 2025 regarding the above and Mr. Brew responded that due to challenging personal circumstances the funds were taken to support the business and provide for his family. The letter stated that the director’s loan was paid back at an agreed amount and will be fully paid in July 2025. No evidence was provided to support this claim.

The licence of Churchgate Transport Ltd (OC2062055) was revoked on 16 January 2025 due to a loss of professional competence, financial standing and the licence holding entity no longer existing in law. The OTC was advised by the transport manager, Mr. Graham Foster, that he had been made redundant by the company and that he did not have access to vehicles or paperwork. This was disputed by Mr. Brew who subsequently made serious allegations against Mr. Foster, stating that he was suspended on 19 September 2024 (after he had resigned his position as transport manager).

Companies House shows that Churchgate Transport Ltd. was dissolved on 31 December 2024. Initially it was claimed by the operator that the dissolution was due to an administrative error on the part of the accountant. Financial evidence provided at the time indicated that the operator did not hold the required financial standing.

Due to the issues above both the applicant, and the nominated Transport Manager Mr. Foster, were called to a public inquiry to provide further evidence which might assist me in determining whether the applicant can demonstrate that they are able to meet the statutory requirements to be of good repute and be of the appropriate financial standing.

Mr. Brew was also previously a director of Tela Processing Ltd, which was dissolved on 28 February 2019, although that company did not hold an operator’s licence.

Pre-Public Inquiry

Letters calling the operator and transport manager to the inquiry were issued on 29 May 2025. These set out the date, time and location of the hearing and included case management directions to be complied with ahead of the inquiry. Those case management directions were not complied with.

On 19 June an email was received from Mr. Brew stating, “Please take this email as confirmation NB Cushions will be cancelling its application for a operator’s license” (sic).

I considered this to be a request to withdraw the application. In considering that request I had regard to the Digest of Traffic Commissioner appeals which reminds us, at section 4, that “Withdrawal of an application does not prevent [the Traffic Commissioner] from making a determination, but [the Traffic Commissioner] must then ensure that the operator is aware of the decision to continue”.

The Upper Tribunal helpfully directs the reader to Paragraph 3 of 2008/688 D Pritchard which states

“…that as that application had been withdrawn, the Traffic Commissioner had no jurisdiction to proceed to consider Mr Pritchard’s good repute. Mr Harris referred the Tribunal to the decision of 2002/8 Alcaline Limited as authority for the proposition that once an application is withdrawn, the Traffic Commissioner does not have jurisdiction to continue to consider the application. We reject these submissions. First of all, Alcaline Limited makes it clear that whilst in the ordinary course of events, a withdrawal of a licence application should be determinative of the matter, that does not necessarily follow where there is evidence to suggest manipulation of the licensing system, unlawful operation or other conduct which would adversely affect the good repute of the applicant or of those involved with the application.”

My concerns with the application, as set out within the background above, had clearly been set out for the applicant within the calling in letter which was issued on 29 May 2025. Accordingly a response was issued on 23 June advising the operator that the public inquiry would proceed along with my reason for this – namely that “where there is evidence to suggest a manipulation of the licensing system, unlawful operation or other conduct that could adversely affect the good repute of the applicant or of those involved with the application the traffic commissioner has jurisdiction to continue to consider that application.”

On 09 July 2025 I also received email correspondence from the nominated transport manager, Mr. Graham Foster, that he would not be in attendance at the hearing. He set out his reasons for that and asked that they remained private. Mr. Foster had previously, on 16 June 2025, asked to have his nomination as transport manager withdrawn

Public Inquiry

On the day of the public inquiry neither the operator nor the transport manager attended. I therefore made the following determination on the best available evidence before me.

Consideration

In the case of an application the burden lies with the applicant to satisfy the Traffic Commissioner that all mandatory requirements are satisfied. In this instance the applicant has been put on notice of my concerns which resulted in a decision to convene a public inquiry so that further information could be obtained. The operator, by failing to attend, has denied itself the opportunity to provide additional information which might have allayed concerns.

Financial standing is a mandatory and continuous requirement. Mr. Brew has a history of links to companies with insecure finances. This is a concern as any holder of an operator’s licence required financial stability at a minimum level as set in legislation and outlined by the Senior Traffic Commissioner at Statutory Document 2. Mr. Brew’s failure to attend this public inquiry and answer my questions is such that I have no assurances that financial standing can be satisfied. Additionally, the calling in letter sought evidence of a sufficient average balance, or opening balance, to support the application. The absence of any response allows me to make adverse inferences that the finances are not available as necessary.

Legislation allows me to have regard to any information when considering the good repute of the applicant. My primary concern with this application is that it appears to be a Phoenix for Mr. Brew’s previous company NB Cushions Ltd. As above, it failed with significant debts owed. I have regard to Paragraph 61 of the Senior Traffic Commissioner’s Statutory Document 1 which directs:

“…the use of “Phoenix” arrangements to avoid previous liabilities may amount to unacceptable business practice. A phoenix company is where the assets of one limited company are moved to another legal entity (sometimes referred to as a ‘pre-pack’) but with no obligation to pay the failed company’s debts. The conduct of the company is an important factor when considering repute and any suggestion that a company has for example favoured trade creditors over the Crown will prompt questions as to the motive behind such actions. Commissioners will scrutinise such applications carefully to ensure the promotion of the principle of fair competition”

The applicant’s failure to attend this public inquiry has deprived me of the opportunity to ask those questions and appropriately scrutinize the application.

Decision

This application for a Standard National Operator’s licence is refused under provision of the following legislation
- Section 13A(2)(b) – The traffic commissioner must be satisfied that the applicant is of good repute
- Section 13A(2)(c) – The traffic commissioner must be satisfied that the applicant has appropriate financial standing
As this is an application, the decision is limited to refusal. I can only consider disqualification in cases where I direct a licence be revoked. I do however, find that Mr. Brew’s good repute is to be marked as lost. His failure to engage with this regulatory process raises questions over the degree to which he can be trusted. This will, in itself, ensure that any future application that he is involved in will come under the required scrutiny of a traffic commissioner as he will first need to satisfy a commissioner that good repute has been regained.

Transport Manager

The issues under consideration, and determined, relate primarily to the good repute and business practices of Mr. Brew. Transport Manager Foster’s failure to attend this hearing is unfortunate, but I do not find any issue with the transport services which would justify regulatory action against him. I am mindful that any adverse finding on his good repute would result in his automatic disqualification for a period of twelve months, and I therefore hold back from any such determination. I do, however, issue a warning with a reminder that attendance before a traffic commissioner is not by invitation, but by direction. Should he be called to a further inquiry he should endeavor to attend otherwise his livelihood could be in jeopardy.

David Mullan

Traffic Commissioner for the North West of England

17 July 2025