Decision for Recovery NLR Limited (OF2060809)
Source: gov.uk (2025-06-16)

Written decision of the Deputy Traffic Commissioner in the South East and Metropolitan area for Recovery NLR Limited and John O'Grady Potgieter , transport manager

SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA

DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

PUBLIC INQUIRY HEARD AT IVY HOUSE, IVY TERRACE, EASTBOURNE ON 17 MARCH 2025

OF2060809 RECOVERY NLR LIMITED

Decision

Breach of Sections 6 and 26(1) (c)(iii) (ca) (e) and (f) of the Goods Vehicles (Licensing of Operators) Act 1995 found.

Licence curtailed to five vehicles for 21 consecutive days with effect from the 7 April 2025.

Undertaking agreed for an independent audit in September 2025 to include analysis of employment status of drivers and operation of vehicles used exclusively as recovery vehicles.

Period of grace for two months in relation to designation of transport manager ordered.

Application for increase in authorisation to fifteen vehicles refused.

Repute of former transport manager John O’Grady Potgieter retained but tarnished.

Background

The operator Recovery NLR Limited is the holder of a standard international licence granted on the 1 December 2022 authorising seven vehicles and seven trailers. The sole director of the company is Eren Dasdemir. There is currently no transport manager designated on the licence as the former John O’Grady Potgieter who was appointed on the 3 November 2023 resigned on the 18 February 2025. An application to increase the vehicle authorisation to 15 was made on 15 January 2024.

On 11 January 2024 a traffic examiner emailed the operator to advise that he would be visiting them on 30 January 2024 to carry out an investigation. The examiner was met by the transport manager, John Potgieter who said that he lacked control over the disciplinary system and he was not involved in any disciplinary decisions. The examiner requested additional documents to allow him to finalize his TEVR. Some documents were received on 5 February 2024 from Mr Potgieter. Following a request for the missing documents, more documents were received on 14 February 2024.

The examiner wrote to the operator for an explanation of missing mileage in October and December 2023. In response Mr Potgieter stated the missing mileage was due to shunting in the yard. The examiner sought a further explanation as the analysis of the data found 7 incidents of driving without a card between 4 October 2023 to 15 December 2023 ranging between 43mins to 8hrs 24mins. On 1 March 2024 a response Mr Potgieter confirming the explanation did not align with the data. He said that he had shared missing mileage reports with the operator but never received any clarification.

In his report the examiner highlighted concerns in relation to missing mileage, driving without a card inserted, drivers being self-employed, and using more vehicles than authorised. Reassurances saying that deficiencies were being addressed were sent by the transport manager in response to the report.

On 28 February 2024 vehicle FP18 WVR was stopped, and it was found that the VU had not downloaded for 936 days, and the vehicle acquired more than 120 days prior to the stop. The police noted that the vehicle was not specified on the operator licence and there was no margin, raising concerns that the operator was using more vehicles that authorised. The police contacted the director who agreed to add the vehicle to the licence.

The police stopped DK67 UXZ on 5 March 2024 as it was towing a car. The driver had a restriction limiting him to towing up to 750kg which the car exceeded. The police also found a drivers hours breach (driving for 6hrs 47mins without the required breaks). The vehicle was not specified on the operator licence and there was no margin. The operator told the police that he was applying for an increase to 15 vehicles and had been using more vehicles than authorised to avoid job losses.

The examiner carried out an interview under caution with Mr Dasdemir and Mr Potgieter on 25 April 2024. When asked about the police stops, Mr Dasdemir stated, ‘No comment’ and asked to go to a public inquiry. Mr Potgieter advised Mr Dasdemir not to sign the interview record. Analysis of the data received from Mr Potgieter on 12 April 2024 revealed 31 incidents of driving without a card between 9 October 2023 and 13 December 2023 ranging from 17mins to 11hrs & 10mins.

The report from the examiner highlighted a further stop on 17 May 2024 when DVSA stopped vehicle WK60 BHO and checks found the vehicle was not specified on the licence and there was not margin to allow it be added. A response to the Traffic Examiners investigation was sent by the Transport manager on behalf of the operator.

Due to the issue of an S marked prohibition a maintenance investigation was carried out on 15 October 2024. The report highlights the following issues: PMI intervals exceeded on occasions, severity of defects not always clearly annotated, brake tests not always carried out in same ISO week as PMIs, driver detectable faults found at PMI, and the issue of prohibitions (including an S marked).

In his response to the vehicle examiner, Mr Potgieter stated he had spoken to the maintenance provider regarding annotation of defects, in future PMIs, an RBT will be carried out in the same ISO week and PMIs will be audited with any discrepancies being identified. Steps will be taken to ensure PMI intervals are adhered to in future. All drivers will be given refresher training on the importance of the walk round check. The RHA are being engaged to carry out a quarterly review of all procedures.

Traffic Examiner Michael Nicoll stopped vehicle SA66 FXM on 12 September 2024. The driver, Martin McMullan, stated he was working for Recovery NLR Ltd. The vehicle was not displaying an operator disc. The vehicle was found to be overloaded by 6.67%. A download of the vehicle unit showed the vehicle had been driven on 10 September 2024 without a card for 32mins. On 11 September 2024, the driver Mr McMullan had removed his card at 18.21hrs after driving for 8hrs & 43mins then drove for a further 42 mins without the card. Checks show that vehicle SA66 FXM was specified on licence OK1138158, Adrian Sabin Epure. On 17 September 2024 an email was received from Mr Potgieter stating that he had no involvement with SA66 FXM or Adrian Sabin Epure, OK1138158. He confirms the driver, Mr McMullan, had previously worked for a company for which he is transport manager. The examiner received a call on 17 September 2024 from a Manager at Recovery NLR Ltd who said Martin McMullan worked for them and they sometimes hired vehicle SA66 FXM from Adrian Sabin Epure. She also said that the company had sacked Mr McMullan for not using his driver card. The examiner states that a registered keeper check for SA66 FXM shows Recovery NLR Ltd has been the registered keeper since 10 July 2024. The vehicle was specified on 23 July 2024 (removed on 30 September 2024).

In light of the DVSA findings the Traffic Commissioner decided to call the operator to a public inquiry. Former transport manager, John Potgieter, was also called for his repute to be considered. The decision in relation to variation application to increase to 15 vehicles was deferred until the inquiry.

The Public Inquiry

Director Eren Dasdemir together with operations manager Eldem Sakir attended the public inquiry, represented by counsel Mr Finnegan. Former transport manager John Potgieter, who was unrepresented attended and was accompanied by his wife who assisted him at the hearing. Traffic Examiner Olaru and Transport Consultant Lisa Fleming attended virtually via Microsoft Teams.

In advance of the hearing, I had received submissions on behalf of the operator and representations in relation to the possible exemption of some vehicles from operator licensing. A statement from Mr Potgieter and updated statement from Traffic Examiner Olaru and the Vehicles Examiner who had conducted the earlier maintenance investigation were also received and I distributed copies of a report received from Police Constable Sturman which related to the stops of vehicles on the 28 February and 5 March 2024 which had not been included in the original case bundle.

Evidence

Before hearing evidence in relation to the incidents and investigations I referred to the representations received from Mr Finnegan in relation to the possible exemption from operator licensing of some of the relevant vehicles. Mr Finnegan confirmed that the submission being made was that some of the vehicles that had been stopped and believed to have been used without operator licence cover were in fact recovery vehicles which were being used for a purpose which is exempt.

Ms Fleming said that she had examined the delivery schedules for ten vehicles which were used by the operator and believed that their use at all times had been within the exemption for recovery vehicles. She provided the registration numbers of those vehicles to me. I asked Mr Dasdemir to explain where vehicles were recovered from and he said sometimes from the roadside, sometimes from garages who had attempted repair and sometimes from the homes of the owners of the vehicles on the instructions of an insurance company. The vehicles were taken to a central location to be scrapped.

I asked when this claim of an exemption had been identified and referred to the written submission which said that it was when Ms Fleming was engaged recently. Mr Potgieter said he had advised the operator that the vehicles needed to be included on the operator’s licence hence the application to increase authorisation to 15 from 7. He said that the way the vehicles were being deployed led to the exemption not being applicable. Mr Dasdemir and Ms Sakir said they was unsure and confused at the relevant time as to whether an exemption applied. Mr Olaru queried whether collection of a disabled vehicle from the owner’s home fell within the statutory exemption provisions.

Traffic Examiner Olaru was referred to his report and he confirmed that data had been requested in relation to four vehicles and two drivers at the outset of the investigation. Large amounts of missing mileage had been detected particularly in relation to vehicle PN64PVA and data in relation to two of vehicles requested was not supplied. I asked Mr Dasdemir to explain the missing mileage but neither he nor Mr Potgieter could do so. Mr Dasdemir commented that the dates involved were a long time ago and he couldn’t say now why the vehicle was driven without a driver card being inserted.

Mr Olaru referred to the stop of FP18WVR on the 28 February 2024 and it was said that this was one of the vehicles which could have been used without being authorised on the operators licence was a recovery vehicle undertaking work which was exempt. Vehicle DK67UXZ which was stopped on the 5 March 2024 was also claimed to be under a similar exemption. On both of these occasions other potential offences were identified and are pending possible criminal prosecutions. When the operator was contacted concerning the use of vehicles which were believed to be beyond the number authorised by the operator’s licence. Ms Sakir said that the application for an increase had been made, and the operator had been operating more vehicles than the number permitted to prevent job losses.

On the 29 April 2024 an interview with Mr Dasdemir was conducted with Mr Potgieter was present. Mr Dasdemir gave some answers to questions and answered “no comment” to others. On advice from Mr Potgieter, he refused to sign the record of interview. At the hearing Mr Potgeiter was asked why this was and he said that they had been given no time to consider what was recorded at the interview or consider the questions to be answered before attending.

On the 17 May 2024 vehicle WK60BHO was stopped and the driver stated that he was on a journey to Nottingham to deliver a vehicle to a customer. This vehicle was not listed on the operator’s licence at the time and was not one of the vehicles identified by Ms Fleming as being a “recovery only” vehicle. Mr Dasdemir agreed that this vehicle was owned and operated by the company but could not say whether the reason for the journey was as stated by the driver at the time.

On the 12 September 2024 vehicle SA66FXM was stopped when carrying a disabled vehicle when authorised under a licence issued to a sole trader Adrian Sabin Epure. Mr Dasdemir said that he was operating the vehicle which was on hire despite it being on another licence, it was being used for recovery and was still owned and operated by his company.

In concluding his evidence Mr Olaru said that he had examined the data provided in advance of the public inquiry and was content that driver data showed only minor infringements. The vehicles he had received showed no missing mileage of concern, but the data did not cover the three-month period requested for all vehicles. Ms Fleming said she had sent the data and could not understand why some was incomplete. Her analysis of the full data showed no missing mileage that raised concerns.

I referred to the maintenance investigation conducted by Vehicle Examiner Warren on the 15 October 2024 and highlighted the adverse findings that he made. The responses from Mr Potgieter were referenced and he said that the actions taken had removed the concerns in relation to the PMI records and the dates when brakes tests are conducted. I pointed out that drivers appearing not to be carrying effective walk round checks was an issue when the original investigation took place and this continues to be a problem based on the report prepared by Mr Warren for the inquiry. Mr Potgieter said that training and gate checks had been introduced to improve the effectiveness of walk round checks but improvements had not been maintained beyond a few weeks when levels slipped back. The MOT pass rate was based on 9 tests which had taken place during the relevant period with 8 of these being first time passes.

I referred to the issue of prohibitions and infringements on the 26 March 2024 when the prohibition was marked as showing a significant failure in the maintenance provision on the part of the driver. Mr Dasdemir said that this related to a trailer which was unroadworthy and was supposed to be carried on one of the recovery vehicles. Instead of doing this the driver attached the trailer and drew it as normal leading to the issue of the prohibitions and infringements. I pointed out that some of the prohibitions applied to the towing vehicle and this was accepted.

I indicated to Mr Potgieter that he may give evidence on his own behalf and that I had read his statement and considered the enclosures. I referred to an example of his monthly reports he was submitting to the operator and asked him where the evidence was to show what the operator had done in response to his observations and recommendations. He accepted that on this occasion he did not have anything on the papers to show this, and Ms Sakir said that she had received the report, taken action and filed the report and a copy of things she had done, in a separate file without necessarily informing Mr Potgieter of this. Mr Potgieter confirmed that he told the operator that he did not think the recovery exemption applied and that he should not use the additional vehicles without an increase in authorisation being agreed. I asked Mr Potgieter why, when he believed his advice had not been taken, did he not resign. He said that did not resign because he didn’t want to leave the operator in a difficult situation.

In cross examination Mr Finnegan asked Mr Potgieter why he said previously that Mr Dasdemir considered costs first. He replied by saying that financial issues were high on the list of considerations by Mr Dasdemir but not the foremost one. The drivers had been moved on advice to being employed via PAYE, but some had moved back to being self-employed. He had found Mr Dasdemir to have an assertive way of dealing with people which bordered on aggressive. Mr Potgieter had not managed the recovery vehicles because they were not vehicles authorised on the licence. He did not accept his role was akin to an auditor or consultant. He saw his job more as oversight and the operator’s to manage the licence.

He accepted that he should probably have visited the new operating centre nominated on the variation application but did not accept he needed to visit the centre where no records or staff were. He had not asked anyone to “backdate infringements”. Mrs Potgieter said this had been her note and she had not intended anything underhand by the use of that phrase.

In closing Mr Finnegan submitted that clarifying the fact that many of the vehicles operated could have claimed the recovery vehicle exemption resolved many of the concerns in this case. He said that once incidents involving these vehicles were removed there was little of concern in relation to either maintenance or drivers’ hours issues. The involvement of Ms Fleming, the revised disciplinary process and training would make this a fully complaint operator. A period of grace to allow Ms Sakir or an alternative transport manager to be nominated was requested, undertakings for the engagement of Logico, segregation of vehicles between recovery and other work and an audit were offered. He also asked that I grant the application for an increase in authorisation as applied for.

I asked for further information as to the impact of regulatory action on the business and it was confirmed that revocation would put the operator out of business. It was stated that any suspension or curtailment would seriously impact with a figure of £2000 per day quoted as income in respect of each of the seven vehicles authorised on the licence.

I gave Mr Finnegan the chance to present any further information he felt relevant to the impact of regulatory action and a detailed analysis prepared by an accountant of the financial impact of regulatory options were subsequently submitted. Out of fairness I offered Mr Potgieter the opportunity to present further information, and he sent a written submission which I read. As the content did not contain anything materially different to previous documents or evidence given, I did not feel it necessary to send a copy to the operator.

Findings and Decision

In determining this case I need to decide whether I accept the submission made on behalf of the operator that the work carried out by “the recovery vehicles” was within the exemption from requiring an operator’s licence contained in paragraph 27 of Schedule 3 of the Goods Vehicles (Licensing of Operators) Regulations 1995 with recovery vehicle defined in Part V of the Vehicles Excise and Registration Act 1994.

Mr Dasdemir told me that disabled vehicles were recovered from the roadside, garages where the vehicles had been taken for repair or on occasions from the customer’s home. Traffic Examiner Olaru accepted that the journey from roadside and garages were within the terms of the exemption but queried whether movement of vehicles from the owner’s address was within the terms of the exemption. My opinion is that each case will be fact specific but I can envisage situations where recovery from an owner’s home is within the exemption. For example, if a vehicle suffers a major engine fault and happens to be on the owner’s property when this happens recovery would be allowed and the same would apply if a vehicle has accident damage, is driven home and then subsequently written off on inspection. I emphasise that my opinion is not intended to be an authority for future reference and it is for operators to check the law for themselves and if necessary, liaise with the DVSA.

Ms Fleming told me that she analysed the journeys undertaken by ten vehicles she listed and found them to be within the exemption provisions. Whilst I accept her evidence as being truthful there has been no cross checking of the data by the DVSA and if this did occur, I would ask for further checks to see if any of the vehicles delivering disabled vehicles carried non-disabled vehicles on return journeys. It is also the case that vehicle WK60BHO was stopped on the 17 May 2024 and the driver said he was delivering a vehicle to a customer which would certainly be outside of the exemption provision as confirmed by the Upper Tribunal in 2020/020 Parker Body Repairs Limited.

In summary therefore my conclusion is that some of the journeys undertaken by vehicles that were not named on the operator’s licence were exempt journeys and some others were not. The balance between those two options is impossible to define without much more detailed analysis.

A fact I also need to take into account is that Mr Dasdemir and Ms Sakir, who is hoping to become a transport manager, said they were confused and uncertain at the time whether the recovery exemption applied. Mr Potgieter said that he told them it did not apply and this was not disputed. The application for the increase in authorisation was said to be prompted by the belief that the additional vehicles needed to be on the licence. Despite these factors the use of the vehicles continued. Mr Finnegan submitted that I could overlook this because in the event, the exemption applied. My view and finding however, is that this operator should have been more cautious and measured before using the additional vehicles when unsure whether it was legal to do so. Additional information in relation to the exemption could have been sought and/or use of the vehicles halted until the variation application had been determined.

Additional negative factors in this case are the continuing issue where driver detectable faults are being highlighted at preventative maintenance inspections, the S marked prohibition issued on the 26 March 2024 and the missing mileage found in relation by Traffic Examiner Olaru in respect of vehicle PN64PVA.

On the positive side the MOT pass rate is good, both the reports prepared by DVSA offices for the inquiry show improvements in terms of compliance, the original maintenance investigation was marked as mostly satisfactory, and the operator has engaged transport consultants to assist going forward.

In terms of my formal findings, I find that there have been breaches of Sections 6 and 26(1)c) (iii) (ca) (e) and (f) of the Goods Vehicles (Licensing of Operators) Act 1995. In deciding on the seriousness of the case I have balanced the negative features as detailed with the positive aspects and concluded that this case falls in the serious category of case as set out in Annex 4 of Statutory Document 10 issued by the Senior Traffic Commissioner. The starting points for consideration of regulatory action in that category are revocation with consideration of disqualification, suspension up to 28 days, or a significant time limited curtailment that may materially affect the transport operation.

Despite the level of seriousness I find that I can draw back from revocation of the licence and give the operator a chance to show that full compliance with the requirements of the licence can be achieved. My impression is that this is a business that has grown very rapidly and the desire to achieve that growth led to compliance requirements being given a lower level of importance than they should have had. With the assistance of Ms Fleming, I am giving the operator the chance to show that this can change.

I nevertheless find it necessary to order some regulatory action and I believe a proportionate response taking into account the information provided by the accountant is to order curtailment of the licence to five vehicles for 21 days consecutive days which will commence on the 7 April 2025. The details of the two vehicles to be curtailed and the discs for those vehicles to be sent to the Office of the Traffic Commissioner within 7 days of receipt of this decision. I find that this is a case where tangible and meaningful action needs to be taken to mark the seriousness and as a deterrent for this operator and others. If my decision impacts on the drivers I hope it will assist in highlighting the importance of their compliance in matters such as walk round checks.

I allow a period of grace for two months for a new transport manager to be appointed. Whoever is proposed, whether it is Ms Sakir or another person, must be sure that their advice and guidance given to Mr Dasdemir will be accepted and acted upon. Their repute will be at risk if it is not.

I was asked to consider the application for an increase in authorisation to fifteen vehicles and I am refusing that application. Whilst I trust the operator sufficiently to allow the licence to continue, I do not find it is the right point to allow any increase in authorisation. I am accepting the undertaking offered for an audit as set out below and after that has been processed it may be a time for an increase to be considered if the outcome is positive.

I accept the undertaking for an independent audit and direct that this shall be conducted in September 2025. The full direction for the audit will be contained in the decision letter but I also require the auditor to examine firstly the arrangements in place whereby vehicles are operated under the exemption provision for recovery vehicles. I will expect the auditor to examine job sheets and other relevant document to see if the exemption is being applied lawfully. Secondly the auditor should report on the employment status of the drivers. I note the comments from Mr Potgieter in relation to the short lived change to drivers being employed, and the fact that the accountant states that there are currently five employees which seems too low when there are seven vehicles before other employed staff are counted. The operator should be aware that I retain the option of calling them to a further inquiry if the audit identifies significant areas of non-compliance.

Finally, I need to consider the repute of the former transport manager John Potgieter. In considering this I have regard to the documents which Mr Potgieter sent me, the evidence he gave and his submissions. My conclusion is that he provided voluminous amounts of information to the operator with detailed and technical analysis. His states that the operator did not always act on this information or did so for a time before reverting back to previous conduct. He said that it is for him as the transport manager to oversee the operation and for the operator to manage and run the business. Whilst this is true to an extent the expectation is there is continuous and effective management of the transport operation. In this case the management was not effective. Mr Potgieter identified failings but l do not believe he did enough to ensure that actions were taken to rectify the failings. The essence, as was stated at the inquiry is one of teamwork and when that team is not functioning effectively the transport manager puts his repute at risk by continuing to remain in post.

Balancing all these factors together I conclude that Mr Potgieter’s repute is retained but is marked as tarnished. This decision does not impact on the other licences where he is designated.

John Baker

Deputy Traffic Commissioner

20 March 2025.