Decision for Peter Youings & Partners (OH2021967)
Source: gov.uk (2025-06-03)

Written decision of the Traffic Commissioner in the West of England for Peter Youings & Partners

In the West of England

PETER YOUINGS & PARTNERS – OH2021967

PUBLIC INQUIRY HELD ON 26 MARCH 2025 AT THE LAW COURTS BARNSTAPLE

WRITTEN DECISION OF TRAFFIC COMMISSIONER DORRINGTON

SUMMARY OF MY DECISION

After undertaking a careful review upon the suitability of the operating centre specified on the restricted operator’s licence, reference OH2021967, held by Peter Youings & Partners, I was satisfied that it was more likely than not that the continued use of the operating centre at Barbican Close, Barnstaple, EX32 9HE created unacceptable environmental conditions (noise) that adversely affected the use or enjoyment of the land owned or occupied by either or both valid representors by the regular interruption to their sleep before 5.30am.

After carefully considering the facts of this case, and the representations made by the operator to my proposed condition to which I have given special consideration, I have determined that in order to sufficiently mitigate that noise intrusion, and the resulting interruption to sleep, the following condition is now recorded on the operator’s licence and that this operator’s licence can be renewed subject to the same:

“There will be no starting of authorised vehicles and/or first movement of authorised vehicles within the operating centre before 0530 hours and after 2200 hours Mondays to Fridays (emergencies excepted) and no starting of authorised vehicles and/or first movement of authorised vehicles within the operating centre before 0800 hours and after 1800 hours on Saturdays (emergencies excepted). There shall be no operation, movement, loading or unloading of authorised vehicles within the operating centre on Sundays (emergencies excepted). An “emergency” for the purposes of this condition is defined as an exceptional event, not known about in advance, that could not have been planned for and which does not repeat with any pattern that renders the event as being no longer exceptional and/or unexpected. All such events must be recorded in writing in a single book/diary with a full explanation given. Such records to be retained for at least two years and must be made available upon request by the Traffic Commissioner, Office of the Traffic Commissioner, DVSA or the Police.”

BACKGROUND

Peter Youings & Partners (a partnership) were granted restricted operator’s licence, reference OH2021967 in 2019. The licence authorises 12 vehicles and no trailers. As with all operator licences, every 5 years the licence has to be renewed. Part of that process allows for a Traffic Commissioner to consider undertaking a review of the operating centre to consider whether it remained suitable. In this case it was decided that a review should take place after two people, Mr Pickard and Mr Harvey, had made representations that the operating centre at Barbican Close, Barnstaple, EX32 9HE, was not suitable due to, amongst other matters, noise generated by the operator’s vehicles. Those representations were deemed to be valid and despite efforts being made to reach a compromise no suitable compromise could be reached. As a result a public inquiry was called and it was heard at 11am on the 26 March 2025 at the Law Courts in Barnstaple.

In preparation for the hearing I had asked the Driver and Vehicle Standards Agency (“DVSA”) to undertake an analysis of the data contained in the vehicle units from the operator’s regulated vehicles to tell me the times that those vehicles first moved each day. Traffic Examiner Mrs Bendle used a three month reference period for this exercise and a copy of the resulting DVSA report was served upon the operator and was added to the electronic case bundle together with all of the other evidence in this case and submissions received from Counsel for which I was grateful.

In the days before the public inquiry I undertook a site visit of my own after 8pm to get an understanding of where the operating centre was and where the properties of Mr Harvey and Mr Pickard were and ambient background noise. I undertook that site visit entirely on my own with no one else present.

PUBLIC INQUIRY ON 26 MARCH 2025

Present on behalf of the operator were partners Peter Youings, Jane Youings and Joshua Youings-Clarke. In addition Mr Tutton was also in attendance. The operator was represented by Mr David Cambell of Counsel. In addition to the operator’s papers in the electronic bundle I was also handed further tangible (paper) evidence for which I was grateful.

Neither of the representors attended. Mr Jusef appeared for Mr Harvey and explained why Mr Harvey could not be present.

I first undertook a short hearing in private session because a matter of commercial sensitivity needed to be explained to me. That part of the hearing appears as a separate document to this public document and is not available (and will not be made available) to the public.

I then undertook the open public inquiry and having explained the hearing I then proceeded to hear evidence from the DVSA and then from the partnership. Submissions were then made on behalf of the partnership by Counsel.

I also heard from Mr Jusef but made it clear that I could only take into account the evidence that had been given by Mr Harvey in his written representation (see page 78 onwards in the bundle). That was, and is, the only evidence I have taken into account as that is all the law allows me to take into account.

THE LAW

The power to hold a review of an operating centre is contained in sections 30, 31 and 32 of the Goods Vehicles (Licensing of Operators) Act 1995 as amended (the “Act”).

Section 32 of the Act allows a Traffic Commissioner to add a condition(s) to an operator’s licence under section 23 of the Act.

Section 23 of the Act states, amongst other matters:

“(1) …a traffic commissioner may attach to the licence such conditions as he thinks fit for preventing or minimising any adverse effects on environmental conditions arising from the use of a place [F3in the traffic area to which the licence relates] as an operating centre of the licence-holder.

(2) The conditions which may be attached to a licence under this section shall be of such description as may be prescribed; and, without prejudice to the generality of the preceding provision, the descriptions which may be prescribed include conditions regulating— … (c) the hours at which operations of any prescribed description may be carried on at any such centre. … (4) [F8A traffic commissioner] shall not—

(a) attach any condition such as is mentioned in this section to [F9a heavy goods vehicle] licence, or

(b) vary in such manner as imposes new or further restrictions or requirements any condition attached to [F10a heavy goods vehicle] licence under this section, [F8unless the applicant for the licence or (as the case may be) the licence-holder has first been given an opportunity to make representations to a traffic commissioner] with respect to the effect on his business of the proposed condition or variation.

(5) The traffic commissioner shall give special consideration to any representations made under subsection (4) in determining whether to attach the proposed condition or make the proposed variation.”

BURDEN AND STANDARD OF PROOF

The burden of proof was upon either, or both, of the representors to prove the allegations they had made and upon the DVSA to prove any allegations made in the evidence provided. The standard of proof was the civil law standard; the balance of probabilities. In other words what was more likely than not to have happened.

FINDINGS OF FACT

All findings of fact have been made after applying the correct burden and standard of proof to all of the evidence that was before me.

These proceedings look at matters in the round as there are no strict rules of evidence or procedure. In that respect the valid representations before me related to noise intrusion. As I explained in the hearing, when Mr Pickard stated in his representation that his sleep was disturbed on a regular basis because the noise in the morning was unacceptable he would not know what it was that was disturbing his sleep until after he had been woken up from his sleep. The fact was that he complained of being woken from his sleep regularly by unacceptable noise (see pages 72 and 73 of the bundle). Likewise when Mr Harvey complained of noise at 4.30am-5.15am and being woken up twice a week despite having triple glazing his complaint was simply that; that he was woken up in the night (4.30am to 5.15am is classed as night time in legislation, see the Working Time Regulations 1998 for example that states night time is between 11pm and 6am) twice a week by noise he attributed to this operator.

From my site visit it was clear that there were no other operators in the vicinity to this operating centre.

From my site visit Mr Pickard and Mr Harvey both live very close to the operating centre and are clearly classed as being within the vicinity of it (within sight, sound or smell).

The evidence of the DVSA was not, or not materially, challenged by the operator. That unchallenged evidence included the oral evidence in the public inquiry that the times stated in the DVSA report were very accurate for the first movement of each vehicle.

From the evidence of the DVSA the following are now formal facts from my analysis (and calculations) of that evidence:

• 642 vehicle days were looked at by Traffic Examiner Bendle

• Of those 642 vehicle days there were 121 instances of a vehicle being driven between 5am and 5.29am (18.8% of the time)

• Of those 642 vehicle days there were 193 instances of a vehicle being driven between 4.30am and 4.59am (30% of the time)

• Of those 642 vehicle days there were 105 instances of a vehicle being driven earlier than 4.30am (16.4% of the time)

• That meant for 65.2% of the total time (419 instances out of 642) vehicles started being driven before 5.30am (therefore only 34.8% of vehicles started to be driven at or after 5.30am)

Looking at the earliest times a vehicle started to be driven by each vehicle recorded on the operator’s licence the following was apparent:

FJ67ZRD - 12 tonne vehicle.

The Traffic Examiner evidence proves this vehicle starting driving as early as 4.19am, see p.20v of the bundle

FN17 BXU – 12 tonne vehicle.

The Traffic Examiner evidence proves this vehicle starting driving as early as 4.18am – see page 20w of the bundle

HT16 VTE – 18 tonne vehicle

The Traffic Examiner evidence proves this vehicle starts driving as early as 4.38am – see page 20x of the bundle

MX17 DCU – 12 tonne vehicle

The Traffic Examiner evidence proves this vehicle starts driving as early as 4.15am – see page 20x of the bundle

MX66 DNY – 12 tonne vehicle

The Traffic Examiner evidence proves this vehicle starts driving as early as 4.23am - see page 20y of the bundle

PE67 JHJ – 18 tonne vehicle

The Traffic Examiner evidence proves this vehicle starts driving as early as 4.20am – see page 20z of the bundle

WA18 RZY – 12 tonne vehicle

The Traffic Examiner evidence proves this vehicle starts driving as early as 4.13am – see page 20aa of the bundle

WN16RGO – 12 tonne vehicle

The Traffic Examiner evidence proves this vehicle starts driving as early as 4.15am – see page 20aa of the bundle

WA18RZZ – 12 tonne vehicle

The Traffic Examiner evidence proves this vehicle starts driving as early as 4.14am - see page 20ab of the bundle

WU18FWE – 12 tonne vehicle

The Traffic Examiner evidence proves this vehicle starts driving as early as 4.11am – see page 20ac of the bundle

WU18FWT – 12 tonne vehicle

The Traffic Examiner evidence proves this vehicle starts driving as early as 4.30am - see page 20ae of the bundle

WX17 YFM – 12 tonne vehicle

The Traffic Examiner evidence proves this vehicle starts driving as early as 4.10am – see page 20ae of the bundle

From my site visit I find that from the location of the operating centre, lack of any other operator in the vicinity, land use around the operating centre and from the local road network that the traffic on the roads that access the operating centre and in the immediate vicinity of the operating centre between 4am and 5.30am, excluding the operator’s vehicles, would be extremely light.

From my site visit I am satisfied that the ambient background noise, excluding that emanating from the operation of the operator’s vehicles, in the vicinity of the operating centre between 4am and 5.30am would be still and quite for the majority of the time.

The Traffic Examiner evidence proves that the vehicles were, for the majority of the time, first driven at or before 5.29am and as early as 4.10am.

In order to first drive a regulated vehicle onto any public road the driver must first arrive and do a walk round inspection of the vehicle. Part of that first use inspection must involve having the engine in operation to properly test the air pressure build up in the braking system, normally undertaken by depleting the air reservoir by depressions on the brake pedal before the engine is started and then to make sure the pressure builds up fully again when the engine is started. This is made clear in the DVSA video that has been in the public domain for many years; see for example HGV safety inspections: what to check (https://www.youtube.com/watch?v=VJwTN2jQfMM&t=1502s) from the 23 minute point into that video.

When a vehicle is first driven there needs to be a degree of revving of the engine to allow the vehicle to pull away from its stationary position, especially when the vehicle is laden as more effort (energy) is required to move it compared to when the vehicle is unladen. I was told by the operator that vehicles leave the operating centre laden.

Pulling everything together I find that the complaint (representation) made by Pickard, as I have found it to be in paragraph 16 above, is proven because from the ambient background state of the environment in the vicinity of the operating centre between 4am and 5.30am the starting up and then first movement of this operator’s regulated vehicle or vehicles would be sufficient noise to break up that ambient background state and to wake him from his sleep. I add that this would be particularly so in the summer months when he may chose, perfectly reasonably, to have his windows open to assist with ventilation, especially during hot periods of weather.

For both Mr Pickard and Mr Harvey the number of times that vehicles operated by this operator were started and then driven for the first time earlier than 5.30am (65% of the total time and 46% of the total time vehicles were first driven before 5am) is such that I am left in no doubt that such activity was a normal and regular occurrence.

Is it acceptable to regularly wake someone from their sleep before 5.30am? No. Common sense prevails.

Could it be reasonably expected for Mr Pickard or Mr Harvey to change their sleeping patterns so that in order to get enough continuous sleep at night they would have to fall asleep earlier than 9.30pm? No. Common sense prevails.

Could it be reasonably expected for Mr Pickard or Mr Harvey to install soundproofing to the land that they own or occupy in order to sufficiently mitigate the noise that I have found is waking them up on a regular basis? Again no and again common sense prevails.

So why are vehicles leaving so early? I find it is because the operator wants its cake and to eat it too. Over time the operator has taken on more and more work that is further and further away from its operating centre. For example, customers as far away as Merthyr Tydfil and Bournemouth. That has resulted in the operator’s vehicles having to leave earlier and earlier to make the return trip that same day.

However, there comes a time when the business wants of the operator reach a point where they pose an unreasonable environmental interference upon the owners or occupiers of land in the vicinity of its operating centre.

I have listened to, and reminded myself, of all of the representations put forward by the operator (including the evidence and submissions given in camera) but none of them sufficiently address the central and immediate issue here; that the operation (by starting up then driving for the first time) of its regulated vehicles is, on a regular basis, this operator is waking Mr Pickard and Mr Harvey up at an unacceptable time and will continue to do so.

I have used 5.30am as a benchmark time in this decision because that time had previously been agreed by Mr Pickard and Mr Harvey as the earliest possible starting time for the operator when a compromise was sought by the staff in the Environmental Team within the Office of the Traffic Commissioner.

As a result, having given very careful consideration to this case, the only way I can determine that the operating centre is suitable on environmental grounds, and therefore the operator’s licence be allowed to be renewed, is to use my statutory powers to add the following condition on the operator’s licence. The draft of that condition was first put to the operator for further representations to be made, as per section 23 of the Act, and I have now given special consideration to those representations in response. Having done so I will prohibit the starting up of authorised vehicles’ engines and/or the first movement of authorised vehicles within the operating centre before 5.30am Mondays to Friday. By doing so I believe that the disturbance to Mr Pickard and Mr Harvey’s sleep before that time has been sufficiently mitigated and my condition strikes the right balance with the operator as a result. I am not prepared to allow authorised vehicle engines to be started before that time and/or vehicles moved before that time, notwithstanding what the operator requested in its response submissions, because it was those very activities before 5.30am that I have found to be causing a disproportionate disturbance to Mr Pickard and Mr Harvey’s sleep. The commercial interests of this operator cannot be allowed to disturb Mr Pickard’s or Mr Harvey’s sleep before 5.30am.

I have also restricted the starting up of authorised vehicles and last vehicle movement of authorised vehicles within the operating centre to being no later than 2200 hours Monday to Friday in order to avoid the risk of Mr Pickard and Mr Harvey being unable to get to sleep at night, even though they did not complain of noise disturbance at or after that time. If I did not do so, then the operator could legitimately shift working patterns to create a disturbance late into the night. In that respect the operator offered a 2200 hour cut off that I have accepted. I have also restricted the hours on Saturdays (which the operator has offered, and I have accepted) and totally restricted all activities involving regulated vehicles on Sundays (which the operator agreed to).

As a result, the condition that will now attach to this operator’s licence is:

“There will be no starting of authorised vehicles and/or first movement of authorised vehicles within the operating centre before 0530 hours and after 2200 hours Mondays to Fridays (emergencies excepted) and no starting of authorised vehicles and/or first movement of authorised vehicles within the operating centre before 0800 hours and after 1800 hours on Saturdays (emergencies excepted). There shall be no operation, movement, loading or unloading of authorised vehicles within the operating centre on Sundays (emergencies excepted). An “emergency” for the purposes of this condition is defined as an exceptional event, not known about in advance, that could not have been planned for and which does not repeat with any pattern that renders the event as being no longer exceptional and/or unexpected. All such events must be recorded in writing in a single book/diary with a full explanation given. Such records to be retained for at least two years and must be made available upon request by the Traffic Commissioner, Office of the Traffic Commissioner, DVSA or the Police.”

The operator is warned that any breach of a condition on an operator’s licence is an offence that can be prosecuted in the criminal courts. It is also an event that directly goes to the issue of an operator’s fitness to hold an operator’s licence.

The condition detailed in paragraph 39 above comes into effect at 2359 hours on Sunday 08 June 2025.

West Midlands Traffic Commissioner Mr M Dorrington

(Sitting as a Deputy Traffic Commissioner for the Western Traffic Area)

22 May 2025