![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
suzyscottdotcomTraffic Commissioner fines Dundee bus company and cancels services
30 December 2009 14:26
Office of the Traffic Commissioner (Scotland)
A Dundee bus company has been fined £12,650 – the maximum penalty - and had several of their services cancelled by the Traffic Commissioner for Scotland.
The Traffic Commissioner, Ms Joan Aitken, also directed that the company be prevented for registering any new local services serving places outwith the area of Angus and Dundee City Council with immediate effect. Services ordered to cease must end by 31st January 2010, with the fine payable to Scottish Ministers by the same date.
James and Catherine Cosgrove, Trading as Fishers Tours, appeared before the Traffic Commissioner at Public Inquiry on October 14 following receipt of an adverse report from Bus Compliance Officers. The commissioner heard that of 42 services monitored; 31 were either early, late, or failed to operate.
The full text of the Traffic Commissioner’s decision is below. Details of her consideration of the evidence and her decision can be found from paragraph 32 .
SCOTTISH TRAFFIC AREA
PUBLIC PASSENGER VEHICLES ACT 1981
TRANSPORT ACT
JAMES & CATHERINE COSGROVE T/A FISHERS TOURS – PM0002937
PUBLIC INQUIRY HELD AT EDINBURGH ON 14 OCTOBER 2009
DECISION OF THE TRAFFIC COMMISSIONER
BACKGROUND
1. The partnership of James & Catherine Cosgrove who trade as Fishers Tours was granted a standard international public service vehicle operator licence in March 2000, with current authority for 23 vehicles with 23 discs issued. Their operating centre is at Mid Cragie, Dundee. Mr Cosgrove is the Transport Manager. They have 49 live local registered services. There is one conviction associated with this licence – that of their driver Mr Paul Morgan, who was convicted at Solihull Magistrates Court on 18 March 2009 of two charges of exceeding 4½hrs driving without the required breaks.
2. Following my receiving adverse reports from VOSA Bus Compliance Officers (BCOs), I directed that the operator be called to Public Inquiry.
PUBLIC INQUIRY
3. The Public Inquiry was held at Edinburgh on 14 October 2009. Mr and Mrs Cosgrove were presented but unrepresented. I established with them that they were aware of their right to bring representation but had chosen to represent themselves. I confirmed that they had received the Public Inquiry brief, which contained the statements in evidence for the case. VOSA was represented by BCOs Mrs C Riley and Mr T Coyle, Mrs Riley taking the lead role in presenting the VOSA evidence and answering questions. There were members of the public and officers from other public authorities observing.
4. During the course of the Inquiry, Mr Cosgrove (who took the lead for the operator) provided me with Navman and Google maps for Stonehouse, Strathaven and aerial photographs of the A719/71 roundabout near to Loudoun Castle and the BP Bellfield service station on the outskirts of Kilmarnock. He also produced two brochures for Fishers Tours Scottish Express routes respectively from Arbroath and Brechin, which showed that these services run on week days only; each service operating on one week day per fortnight.
5. I established with Mr Cosgrove that the list of 49 local registered services within the Public Inquiry brief was accurate. I went through the list, with Mr Cosgrove indicating which were effectively school contracts and which were their “Scottish Express” branded services from Arbroath or Brechin to towns/cities in other parts of Scotland. These destinations were what I would describe as “nice places to visit” as distinct from say, working locations such as industrial estates.
BUS COMPLIANCE OFFICER EVIDENCE
6. Mrs Riley read out the narrative section to her report, with supporting documentation being taken as read. I record here that the documents included photographs taken during the monitoring, including of bus stops and the operator’s vehicles. The BCOs monitored 6 of the operator’s services over 7 days in the period 13 May to 1 June 2009 and found non compliance. They monitored in Glasgow, Stirling, Ayr, Largs, Muirhead, Gleneagles, Bothwell Services, Wemyss Bay, Kinross, Stonehouse and Strathaven. 42 journeys were monitored, of which 35 were seen. Thus, the BCOs’ view was that 7 had failed to operate. After allowing for the Senior Traffic Commissioner tolerance of 1 minute early/5 minutes late, they found other services to be operating early (2) and late (22).
7. It is appropriate to consider this evidence in detail.
Registration/46 – operating as the 245 Brechin to Largs fortnightly on a Friday
8. This service was monitored on 15 and 29 May. On 15 May, the bus should have been at Glasgow airport at 10:58. The BCOs saw it on the M8 at 11:06 when it continued past the junction 28 for the airport. Thus, the vehicle did not call at the airport and failed to operate.
9. On 29 May, BCOs followed this service by car. They were at Greenloaning Little Chef on the A9. The service was 13 minutes late passing Greenloaning. They followed it in their private motor car. After passing Castlecary on the A80, the service is registered to go on to the A752 to Muirhead, but the driver missed that out. The driver continued to the SECC in Glasgow but failed to go to the bus stop in Congress Way. It went back onto the M8 to go to Glasgow Airport where it should have left at Junction 28 to go to the airport but failed to do so. The officers noted major road works at Castlecary but these did not have an adverse affect on the bus service.
Registration/21 – operating as the 229 Arbroath to Largs fortnightly on a Friday
10. This service was monitored on 22 May at Largs, Wemyss Bay, Glasgow Airport, Glasgow SECC and Muirhead. The BCOs followed bus B10SBP from Largs. Approaching Junction 29 on the M8, the bus should have gone off to Glasgow Airport but failed to do so. They continued to follow the bus on the M8 to Junction 19 where it should have gone off to the Glasgow SECC but it failed to do so. They followed the bus along the M8 when it went onto the A80. The bus continued along the A80 and should have left to go onto the A752 to Muirhead but failed to do so.
Registration/25 – operating as the 225 Arbroath to Ayr fortnightly on a Monday
11. This service was monitored on 1 June. The BCOs followed service 225 by car from Greenloaning Little Chef on the A9 to Ayr. One timing point is Bothwell Services on the M74, for both inward and outward journeys. They discovered that the timing point can only be accessed on the journey going to Ayr but not on the return. There was a timing point in the timetable given as Loudon Castle and they took it that the bus would go to the coach park at Loudon Castle, which is about half a mile off the A71. The driver failed to do that. As Mr Cosgrove had produced a Google map of the A71/A719 roundabout, the BCOs were able to show me where the car park entrance was and this was going northwards on the A719 about half a mile from the roundabout. On the map I could see there were bus stops indicated on the A71 on the east side thereof, on both sides of the road.
12. Another timing point on that route is the Bellfield interchange at Kilmarnock where there are no bus stops but Mr Cosgrove had told them that the bus is meant to enter at the BP garage and go to the Travel Lodge and then exit back onto the A71. Again, this could be demonstrated to me by reference to the aerial picture which Mr Cosgrove produced at the Inquiry. On the occasion of the monitoring on 1 June 2009, the bus did not go into the BP/Travel Lodge site. Two other timing points state the Stonehouse bus stop on the bypass whereas there are 3 bus stops on this stretch of the road and the Strathaven bus stop and the bypass where there are 2 bus stops on that stretch of road and the BCOs could find no indication on the timetable which bus stops were the actual timing points intended. The bus is scheduled to leave at 15:30 from Carrick Street, Ayr outside the Gaiety Theatre but instead left from Boswell House at Boswell Park.
Registration/34 - operating as the 233 Brechin to Leith Ocean Terminal fortnightly on a Wednesday
13. This service was monitored on 20 May 2009 at Kinross High Street, Leith, Waterloo Place in Edinburgh and Edinburgh Queensferry Road. The bus was followed from Kinross High Street to Waterloo Place and was not held up by the tram works, given the dedicated bus lanes. The driver picked up passengers in the car park at Ocean Terminal but did not go into the bus lane and did not go to the bus stop at Ocean Terminal.
Registration/39 – operating as the 238 Arbroath to Leith, Ocean Terminal
14. This service was monitored on 13 May. The monitoring was carried out at Kinross High Street, Forth Bridge tolls, Edinburgh Queensferry Road, Edinburgh Waterloo Place and Edinburgh Leith. They followed the bus S151JUA from the Forth Bridge at 10:15 heading to Barnton timed at 10.22. It took 17 minutes to Waterloo Place yet there was only 10 minutes for that on the timetable. Waterloo Place to Ocean Terminal took 11 minutes. The bus left Ocean Terminal at 15:01 and reached Waterloo Place at 15:26 that is 16 minutes late, then left Waterloo Place at 15:31 and arrived at Barnton at 15:51 making it 31 minutes late there.
Registration/33 – operating at 232 Brechin to Stirling fornightly on a Tuesday
15. This was monitored on 19 May from Gleneagles Railway Station at 9:53 where it was 11 minutes late at 10:01. They followed it towards Stirling where it passed the Little Chef A9 also 11 minutes late.
16. The BCOs set out their findings in an analysis on a spreadsheet which was within the Public Inquiry brief.
17. As is their normal practice, they sent their results to the operator giving the operator an opportunity to comment. The operator’s letter of response was dated 9 June 2009 and was in the brief. There was then a visit to the operator when the findings were discussed. They told him to operate to Glasgow Airport via SECC and Muirhead and also to Bellfield interchange and Loudon Castle. They also discussed the Edinburgh road works. The timetable of 10 minutes between Barnton and Waterloo Place was discussed, they advising Mr Cosgrove that even in a car it took 17 minutes. Mr Cosgrove indicated that he would put in variations for the Brechin/Arbroath to Largs timetable, the Brechin/Arbroath to Ayr timetable and the Brechin/Arbroath to Edinburgh timetable.
18. The monitoring was of these services as local registered services. The BCOs noting the 8 – 15 minutes travel time between stops, the latter being the maximum expected between nominated stops. Each service featured substantial travel on motorways and primary routes and it was their view that times shown and registered on the timetables could not be achieved given the time, distance and attendant traffic. They had prepared a table based on running time and distance using information from the AA/Google maps. They were basing this on the time taken by a car. A car would take longer between Arbroath and Leith and Arbroath and Ayr.
19. They calculated a percentage non compliance rate of 73 percent.
20. In response to questions from myself at the Public Inquiry, Mrs Riley told me that, at no time, during their monitorings did they see Fishers Tours coaches stop and uplift passengers. There were passengers on the coaches on all of the different days that they monitored. They did see people getting on at Edinburgh to go back on the coach and at Largs and at Ayr, that is the people who got off the outward journey got back on again to travel back. There was no one at any of the intervening stops. The bus looks like a coach and looks as if it is engaged on a coach tour. I asked Mrs Riley if she was at a bus stop awaiting in the hope of public transport would she have thought to step and put her hand out for this vehicle and she said she would not, as she would not have known where the bus was going. The destination was only shown on an A4 card on the window with the service number. There was only the final destination so no one would know the route. I asked Mrs Riley if she thought that the registration was a sham and her response was that she did not think it was a local registration.
THE OPERATOR’S RESPONSE
21. The operator’s response to the monitoring was contained in Mr Cosgrove’s letter of 9 June 2009 to Mrs Riley. As well as the latter, he attached various documents. He also gave evidence at the Public Inquiry and responded to my questions. He denied that there had been any failure to operate. The alleged failures to operate journeys occurred as drivers by passed the stops to make up lost time. He blamed this on the road works at Castlecary and congestion at Glasgow. Additionally, he commented that if the coach was held up for any reason, it was difficult for the driver to make up lost time and the driver will always be late for the remainder of the journey. The company does not condone drivers missing out stops to make up for lost time. The operator had told drivers in March and April 2009 of the need to service all stops on the route and he attached copies of letters dated 13 March and 23 April 2009. Following the monitoring exercise, the company looked at how they could police the routes so that drivers did not miss any of the scheduled bus stops. They have started what they called a self policing report on 8 June 2009. He said that disciplinary action had been taken against the drivers involved who all lost one day’s holiday pay. He also enclosed reports for the journeys noted in the monitoring. The company had invested in new tachograph instruments supplied by Stoneridge Electronics. He hoped that in the future due to the difference in time taken to analyse the tachographs using the new equipment, as opposed to old hand held disc checkers, that they would be able to do a faster and in depth analysis of the discs supplied by the drivers.
22. A letter of 13 March 2009 to Scottish Express drivers advised drivers that it was their duty to ensure that all daily services are carried out as per the timetables and to service all stops on the route and not to make assumptions that there will be no one waiting on the return journey. They advised that spot checks were liable to be carried out by the Traffic Commissioner’s office, Transport Scotland and SPT and also they themselves. There was a warning of liability to prosecution and that drivers could be suspended from their duties.
23. The template self policing report provided for the driver’s name, date, coach registration, route number, check at the start and finish and the name of any inspectors and their employers if travelling on the bus, for example, VOSA, Scottish Office, Strathclyde. The form provided space for a description of route problems outward and inward.
24. The operator’s letter of 23 April 2009 to drivers concerning a partially sighted passenger waiting on 14 April for on the 242 from Fort William to Forfar , who had been left standing at Canal Street as the bus did not go to the stop. The letter stated “This could have serious repercussions if this passenger decides to inform Transport Scotland of this incident. As we have stated, all designated stops must be served regardless of whether you think there will be anybody standing there or not. Just because they have not booked, does not mean they will not be standing at a designated stop waiting”.
25. The operator prepared some reports and analysis. There was a report on the difficulty on 13 May 2009 to the 238 Arbroath to Leith via Edinburgh. The typed report narrated hold ups between Barnton and Waterloo Place due to the tram road works and that would account for the service being 11 minutes late. The report attributed excessive traffic and day tours between Leith and Waterloo Place causing the service departing Ocean Terminal 15:01 to be late. By being late at Waterloo Place, all other stages were late. There was nothing else the driver could have done.
26. He included a report of 15 May 2009 when the driver was Brian Robertson and he attached details of Mr Robertson’s chart. From that he took certain timings. The chart showed that the service stop at Glasgow Airport was not done and he narrated that with the road works it appears that the driver bypassed the Glasgow Airport bus stop to try and make up lost time. He also took from the journey from Largs to Brechin that there were hold ups going through Glasgow from 16:31 to 15:31, when the coach was in traffic and that made the driver late for all other stages. The report said that given the road works at Castle Cary, the drivers on the Glasgow and beyond routes will also have a problem keeping to the schedule. A similar report was available for the journey of 19 May undertaken by Mr Robertson on the Brechin Stirling run with his chart details, including hold ups on the route. Similarly, for the journey of 20 May 2005 undertaken by Mr Brian Robertson from Brechin to Leith, via Edinburgh and by Mr William Martin on 22 May from Arbroath to Largs when it is indicated that some of the route was omitted; again for Mr Craig Lenehan on 29 May 2009 on Brechin to Largs, with the driver bypassing Muirhead, Glasgow SECC and the Glasgow Airport bus stops. The last report was for Mr Brian Robertson and a chart of 1 June 2009 on the Arbroath to Ayr run when the coach was not up to schedule and there were no hold ups on the way back.
27. When the Scottish Government decided that there would be free travel for over 60s and the disabled and the facility for eligible people to travel free of charge from one end of Scotland to the other, he looked at the market and decided that he would register these journeys as local services. A local service can be any length. It does not have to be 6 miles from the base. As long as he had a bus stop, a designated point every 15 miles or every 15 minutes, then it made it a local service and that is why they went down that road. They did a lot of day tours in the past as Fishers Tours and that market just quashed because people were not going to pay £12 to £14 if they could travel free. So the tours route would be evaporating in favour of free transport. They had not done anything against the law. The registrations were in place and they had been operating them. He had heard talk that they were a sort of bad plum in the basket because they were taking money from services. They claim concessionary fares from Transport Scotland and BSOG.
28. They do seat reservations but a lot of customers do go to the point of departure in Arbroath and Carnoustie. They do not get people getting on every day at other places, for example at Greenloaning were the BCOs looked, though they have picked up passengers from Greenloaning for Largs where people’s sons or daughters have run them down in a car for example from Crieff. They find that they would pick up Glasgow folk and take them to Arbroath because they have got a caravan there so people are beginning to realise what they could book and what the timetable was and so people were using the Ayr and Largs Buses on the different days. The people in their office tell about other operators’ connecting services. They do take fares. They get people in the summer going to Inverness and Fort William and Oban.
29. Local Councils provide bus stop information and they put out their timetables in Glasgow and at various tourist offices, for example in Crieff.
30. In response to a suggestion that it might be considered that on the evidence of the monitoring of these 6 services over the 7 days that the local registrations were a sham and that he had just put it down on paper to get the advantage of concessionary fares and had not been operating the services at all properly and not going to the places where he should have been doing, he admitted that the drivers had not been going to where they should have been and that it was the drivers’ fault. He was not driving the vehicles. BCOs had not followed the whole route. Transport Scotland had been in and have checked and have not found problems. He disagreed that it was a sham, totally disagreed and considered that they conducted the services in the proper manner and he has rectified what he should have done. He has taken drivers on trust and they have let him down. The law had allowed him to register the routes and he had done nothing wrong. He is doing what the legislation asked them to do, to supply a service to allow that generation of older people to travel the length and breadth of Scotland and they provide that service. Only they had taken on board the challenge.
31. They have spent money on a tracker system to resolve the problem costing about £650 each – in 3 vehicles and they will do more every month. They are going to do them on the school vehicles. They have 25 vehicles in the fleet and operate 2, that is leaving them 2 as back up. They have dedicated vehicles with the Scottish Express livery and he pointed that out to me in the photographs on his timetables. If there is any restriction on him being able to register local services that would affect his school his contracts because they require to be registered services. He was doing school contracts before the Government’s policy in relation to concessionary fares. They were doing private hire and still do private hire and extended tours and day tours. They abandoned many of their tours for the Scottish Express. Their tours are popular in Arbroath and Brechin and with Dundee people. There was less advertising in these Scottish Express tours and it is more lucrative.
CONSIDERATION OF THE EVIDENCE AND MY DECISION
32. Section 2 of the Transport Act 1985 defines local service as meaning a service, using one or more public service vehicles, for the carriage of passengers by road as separate fares, other than one –
(a) which is excluded by sub section (4) (below); or (b) in relation to which (except in an emergency) one or both of the conditions mentioned in subsection (2) below are met with respect to every passenger using the service.
(2) The conditions are that – (a) the place where he is set down is 15 miles or more, measured in a straight line, from the place where he was taken up; (b) some point in the route between those places is 15 miles or more, measured in a straight line, from either of those places.
(3) Where a service consists of one or more parts with respect to which one or both of the conditions are met, and one or more parts with respect to which neither of them is met, each of those parts shall be treated as a separate service for the purposes of subsection (1) above.
(4) A service shall not be regarded for the purposes of this Act as a local service if (a) the conditions set out in part III of Schedule 1 to the 1991 Act (trips organised privately by persons acting independent of vehicle operators etc) are met in respect of each journey made by the vehicles used in providing the service; or (b) every vehicle used in providing the service is so used under a permit granted under section 19 of this Act.
33. Section 6 of the Transport Act 1985 provides for the registration of local services and for the making of regulations and for excluding from the application of that section services which are (i) excursions or tours and (ii) excursions or tours falling within a prescribed class. The applicable regulations in Scotland are the Public Service Vehicles (Registration of Local Services) (Scotland) Regulations 2001. These provide for the registration process, notifications and particulars. Regulation 11 provides that section 6 of the Act shall not apply to services which are excursions or tours except any services operated at least once a week for the period of at least 6 consecutive weeks.
34. Regulation 14 provides that (i) subject to paragraph (II), the operator shall, during such time as a vehicle is being used to provide a service, cause – (a)…………………………..(b) to be displayed a notice clearly legible from the exterior of the vehicle, indicating the destination and the route number. (2) This Regulation shall not apply to a vehicle being used to provide an excursion or tour.
35. Schedule 1 sets out the prescribed particulars under Section 6 of the 1985 Act
36. This operator has a history of running coach tours and also of doing school transport work and private hire work. The school contracts were registered as local services, then in May 2006 the operator registered a range of services to operate from either Arbroath or Dundee or Brechin with services ranging from numbers 221 to 251 and with destinations in further parts of Scotland and return the same day. That is one outward and one in inward journey once per fortnight. These journeys would be fortnightly and all year. (List of registrations within the Public Inquiry brief). 6 of such registrations were monitored by VOSA Bus Compliance Officers between 13 May 2009 and 1 June 2009. Their report casts doubt not only on the punctuality of the said services but also on whether the services were being operated as local services. The local service registrations were copied into the Public Inquiry brief and I have had regard to them. I do not see the need to rehearse the detail of timetables and routes in this decision.
37. In order for these services to have been registered by my office, the 15 miles provision had to be met. On the face of it, the registration particulars satisfied that criterion. The operator structured the timetable and description such that on the face of it, these appeared to be bona fide registrations.
38. What the monitoring disclosed was prevalent behaviour by drivers in missing out sections of the routes. I find as fact that these services were not being operated according to the registered particulars and that such failure to operate was prevalent and could have been eradicated by the operator if the operator had so chosen. I am in no doubt having heard the evidence of the Bus Compliance Officers and that what they saw at the various locations was not the compliant or expected operation of a local service.
39. I am not satisfied that the requirement in relation to display of a destination such that persons at a bus stop would know that a local service was approaching was satisfied.
40. The operator had diverted from using bus stops referred to in the registrations, for example at Largs and at Ocean Terminal. The operator was behaving as if these were coach tours rather than local registered services. Bus stops were not being used according to the registered particulars.
41. The only persons successfully boarding at intermediary points were pre-booked travellers. The Bus Compliance Officers saw no individuals attempting to board the operator’s services. The operator’s evidence contained mention of a blind lady who had sought to use the service without booking but by turning up at the bus stop. This service did not operate for her. The operator’s letter to his driver about the incident revealed more concern about being caught by Transport Scotland than distress for a potentially vulnerable traveller.
42. The operator has tachograph evidence available to him. For the tachograph evidence available at the Public Inquiry, it was quite clear that the journeys undertaken by the drivers did not match the registered particulars. Thus, the operator had its own evidence to show that the services were not being run. I state this for I have taken time to look at the tachograph records against the timetables e.g. at the early stages of the runs.
43. The operator blames the drivers and being let down by drivers. The operator had within his knowledge the information which would have demonstrated to him that his services were not compliant with the registered particulars. The operator has not de-registered the services nor varied them. That is significant, that the operator has not taken any steps since the BCO report to vary any of these services.
44. It was not in dispute that the motive for the registration of these services was so that the operator could take advantage of the Scottish Government’s concessionary fares scheme which allows free travel to elderly persons and others across Scotland. Thus, the operator sought to attract passengers to these services who might otherwise be deflected from coach tours or trips by reason of price. The services are attractive and popular. There are some fare paying passengers but the momentum for the services comes from the concessionary fare scheme and the advantage of being able to claim BSOG.
45. I discount the operator’s evidence of recent measures to track his vehicles and of “Self policing” reports. These have arisen following the VOSA Bus Compliance exercise. It is apparent from the operator’s productions that the operator had a reasonable apprehension that his service would attract adverse attention from the regulatory agencies. It is difficult to assess how genuine the operator’s efforts at compliance are. I have a great doubt given the absence of any variations.
46. The BCOs demonstrated that some of the services cannot be run to the timetables registered. Thus, even discounting delays through traffic congestion, the timetables are in such instances not capable of punctual performance.
47. The operator claims that many of the journeys will have been delayed by road congestion. I accept that at Castlecary, near Cumbernauld, road traffic conditions can become very bad and that there is a risk of delay. There will be similar “pinch points” in journeys as long as the operator sought to register. Any operator registering local services of such length has to build into the timetable provision for such, that is what the experienced operators of long distance services do and become accomplished at.
48. It is possible to register and operate compliantly long distance local service registrations. Such registrations are not unknown in Scotland - for example as operated under the City Link brand. Other operators know that they cannot run long distance services as local services because to incorporate the local would be to delay unacceptably the longer journey. I am thinking of the coach services which run between the main cities such as operated by Stagecoach, City Link and National Express.
49. This operator has tried to take advantage of the concessionary scheme, the availability of BSOG and the facility within section 2 and section 6 and the Regulations to allow for long distance service regulations. However, the operator has blatantly failed to operate compliantly. I am in no doubt that the inclusion of places such as Muirhead, Glasgow airport, SECC and so on was simply a device to qualify for concessionary travel and that there was not ever a commitment to serve passengers from those locations.
50. It may be asked how can I justify extrapolating from these monitorings to such a broad conclusion. My starting position is that it is for the operator to register particulars which are accurate and capable of being performed. It is not for me to send someone out to check that. Obviously, from time to time, there will be some glaring matters which can be spotted by administrators in my office of which may be highlighted by local councils. However, the onus is on the operator to register a service which can be operated. What came out of this case was that whilst on paper it looked as if these services could be operated, in practice they cannot be. I give as examples of this that there were not bus stops where there should have been bus stops and that the running times were not possible in some instances. I have to be able to trust an operator and to trust that the operator is running compliantly. It is not surprising that I did not receive any complaints about these services for many of the travellers would be delighted to have what effectively are free coach runs to most agreeable destinations. Thus, what was being operated was lovely for the operator in terms of increased business, income generation, less need to advertise or work hard for business, and excellent for the passengers in terms of free travel for a great number. I myself when considering these registrations when they first came in did not find them without merit for it can be difficult to get from some of the smaller towns of Scotland to other smaller towns of Scotland and thus as an option within the public transport menu such registrations and the creativity behind them received a positive wind from my office. However, that was on the premise that the services can be run compliantly and are compliant. Bus Compliance Officer evidence is very valuable to me for I often say in Public Inquiries that the Bus Compliance Officers stand in place of the public. Thus, they are not bus operators and they are not the Traffic Commissioner, they are individuals who go out to locations to get buses or to see if buses turn up at bus stops. They stand in place of the person who, for example, has picked up a leaflet or who has consulted Traveline or who has looked at the information at a bus stop and stands there expectantly. That person in terms of the regime for bus operation in this country is entitled to have an expectation that the bus will turn up other than in circumstances of reasonable excuse. That person would also have to be able to recognise the service. This is a difficulty in this case because anyone at the road side seeing the vehicles which I was able to see in the photographs would think this was a coach trip and would not think that this was a bus that they could hail and get on. I make this point because it demonstrates that whilst the registration on the fact of it might be saying to the world that there is a bus service available to you on this route at these times, all the behaviours of the operator were such that there was no expectation of any passengers en route other than those who had telephoned in advance and there was no active encouragement or drawing in to encourage local use. It is interesting that no one got off the bus other than at the terminus.
51. I have come to the conclusion that these registrations are not local services for the purposes of section 2 and the Regulations. I gave this operator a chance to show that it was possible to do what they claimed they wished to do, but in practice it does not work.
52. I find that the operator is in breach of section 6. I find that the services have not been run and therefore I am entitled to impose a penalty under section 39 of the Transport (Scotland) Act 2001.
53. This case was not called up on repute so I am not considering the operator’s repute. It was called up in relation to the licence undertakings, in particular, that undertaking to make proper arrangements to ensure that the laws relating to the driving and operation of vehicles to be used under this licence are observed. I am also looking at section 26 of the Transport Act 1985.
54. I consider that the appropriate course of action in this case is for me to direct that the 6 local service registrations will be treated as cancelled. This I do by imposing a condition on the licence that these services will be not operated after a date. I have considered what date to chose and I am mindful that there may be some pre-bookings. I consider that a period of the whole of January should give the operator time to indicate to the public that the services will no longer be available from that date. I will also impose a further condition preventing the registration of any further local services other than school contract services or services which serve places within the areas of Angus Council and Dundee Council.
55. I now consider whether to exercise my powers under section 39. If I was to use the widest availability of that power I would use the maximum figure of £550 with a multiplier of 23, making a total of £12,650. I consider that this is a case in which such a penalty is appropriate and proportionate for this is an operator who has ploughed a lucrative seam and who will have taken business away from others who have engaged, professionally, knowing that such services could not be operated compliantly. They will also have taken some work away from coach operators such as their former selves. They, of course, can return to that type of work. The level of non compliance even allowing for some roadworks delays falls within the band for the maximum penalty as set out in the Senior Traffic Commissioner’s Practice Direction.
56. I order that the payment be made to Scottish Ministers by 31 January 2010.
57. The operator’s other services were not called to Public Inquiry. That is because I had not heard the evidence in this case and I had not heard the operator’s side of the story. However, having heard the evidence in this case a question mark now hangs over all of the other long distance local services operated by this operator. I invite the operator to cancel these services. If they do so that will bring an end to this episode in the operator’s history and will allow the operator to revert to that which can be done. If the operator does not take up this suggestion, then obviously I will have to consider calling the operator to another Public Inquiry at which I would consider the other registered services.
58. I have no evidence of any adverse matters in relation to the operator’s school contract registered services and these should be unaffected by this decision. All are within Dundee and Angus.
59. Finally, in relation to the operator licence apart from the aforementioned conditions, it will be noted that I have taken no action against the substantive licence. Thus, I leave the way open to the operator to engage in school contract work, local service provision within a nearer geographical area to their operating centre and general PSV private hire work. Thus, I have come to a proportionate and balanced decision. It will be open to the operator in future to request that I vary or remove the restriction on the geographical range of any future local services and to persuade me or otherwise.
SUMMARY OF THE DECISION
1. The operator is ordered to pay a penalty of Twelve thousand six hundred and fifty pounds to Scottish Ministers (£12,650 i.e. 23 x £550) by 31 January 2010.
2. There will be a condition put on the licence preventing the operator from registering any new local services serving places outwith the areas of Angus and Dundee City Council, and this with immediate effect.
3. There will be a condition put on the licence preventing the operator from operating local services registrations PM2937/21; 25; 33; 34; 39; 46 with effect from 23:59 on 31 January 2010 and these services will be treated as cancelled from that date.
Joan N Aitken
Traffic Commissioner for Scotland
21 December 2009
30 December 2009 14:26
Office of the Traffic Commissioner (Scotland)
A Dundee bus company has been fined £12,650 – the maximum penalty - and had several of their services cancelled by the Traffic Commissioner for Scotland.
The Traffic Commissioner, Ms Joan Aitken, also directed that the company be prevented for registering any new local services serving places outwith the area of Angus and Dundee City Council with immediate effect. Services ordered to cease must end by 31st January 2010, with the fine payable to Scottish Ministers by the same date.
James and Catherine Cosgrove, Trading as Fishers Tours, appeared before the Traffic Commissioner at Public Inquiry on October 14 following receipt of an adverse report from Bus Compliance Officers. The commissioner heard that of 42 services monitored; 31 were either early, late, or failed to operate.
The full text of the Traffic Commissioner’s decision is below. Details of her consideration of the evidence and her decision can be found from paragraph 32 .
SCOTTISH TRAFFIC AREA
PUBLIC PASSENGER VEHICLES ACT 1981
TRANSPORT ACT
JAMES & CATHERINE COSGROVE T/A FISHERS TOURS – PM0002937
PUBLIC INQUIRY HELD AT EDINBURGH ON 14 OCTOBER 2009
DECISION OF THE TRAFFIC COMMISSIONER
BACKGROUND
1. The partnership of James & Catherine Cosgrove who trade as Fishers Tours was granted a standard international public service vehicle operator licence in March 2000, with current authority for 23 vehicles with 23 discs issued. Their operating centre is at Mid Cragie, Dundee. Mr Cosgrove is the Transport Manager. They have 49 live local registered services. There is one conviction associated with this licence – that of their driver Mr Paul Morgan, who was convicted at Solihull Magistrates Court on 18 March 2009 of two charges of exceeding 4½hrs driving without the required breaks.
2. Following my receiving adverse reports from VOSA Bus Compliance Officers (BCOs), I directed that the operator be called to Public Inquiry.
PUBLIC INQUIRY
3. The Public Inquiry was held at Edinburgh on 14 October 2009. Mr and Mrs Cosgrove were presented but unrepresented. I established with them that they were aware of their right to bring representation but had chosen to represent themselves. I confirmed that they had received the Public Inquiry brief, which contained the statements in evidence for the case. VOSA was represented by BCOs Mrs C Riley and Mr T Coyle, Mrs Riley taking the lead role in presenting the VOSA evidence and answering questions. There were members of the public and officers from other public authorities observing.
4. During the course of the Inquiry, Mr Cosgrove (who took the lead for the operator) provided me with Navman and Google maps for Stonehouse, Strathaven and aerial photographs of the A719/71 roundabout near to Loudoun Castle and the BP Bellfield service station on the outskirts of Kilmarnock. He also produced two brochures for Fishers Tours Scottish Express routes respectively from Arbroath and Brechin, which showed that these services run on week days only; each service operating on one week day per fortnight.
5. I established with Mr Cosgrove that the list of 49 local registered services within the Public Inquiry brief was accurate. I went through the list, with Mr Cosgrove indicating which were effectively school contracts and which were their “Scottish Express” branded services from Arbroath or Brechin to towns/cities in other parts of Scotland. These destinations were what I would describe as “nice places to visit” as distinct from say, working locations such as industrial estates.
BUS COMPLIANCE OFFICER EVIDENCE
6. Mrs Riley read out the narrative section to her report, with supporting documentation being taken as read. I record here that the documents included photographs taken during the monitoring, including of bus stops and the operator’s vehicles. The BCOs monitored 6 of the operator’s services over 7 days in the period 13 May to 1 June 2009 and found non compliance. They monitored in Glasgow, Stirling, Ayr, Largs, Muirhead, Gleneagles, Bothwell Services, Wemyss Bay, Kinross, Stonehouse and Strathaven. 42 journeys were monitored, of which 35 were seen. Thus, the BCOs’ view was that 7 had failed to operate. After allowing for the Senior Traffic Commissioner tolerance of 1 minute early/5 minutes late, they found other services to be operating early (2) and late (22).
7. It is appropriate to consider this evidence in detail.
Registration/46 – operating as the 245 Brechin to Largs fortnightly on a Friday
8. This service was monitored on 15 and 29 May. On 15 May, the bus should have been at Glasgow airport at 10:58. The BCOs saw it on the M8 at 11:06 when it continued past the junction 28 for the airport. Thus, the vehicle did not call at the airport and failed to operate.
9. On 29 May, BCOs followed this service by car. They were at Greenloaning Little Chef on the A9. The service was 13 minutes late passing Greenloaning. They followed it in their private motor car. After passing Castlecary on the A80, the service is registered to go on to the A752 to Muirhead, but the driver missed that out. The driver continued to the SECC in Glasgow but failed to go to the bus stop in Congress Way. It went back onto the M8 to go to Glasgow Airport where it should have left at Junction 28 to go to the airport but failed to do so. The officers noted major road works at Castlecary but these did not have an adverse affect on the bus service.
Registration/21 – operating as the 229 Arbroath to Largs fortnightly on a Friday
10. This service was monitored on 22 May at Largs, Wemyss Bay, Glasgow Airport, Glasgow SECC and Muirhead. The BCOs followed bus B10SBP from Largs. Approaching Junction 29 on the M8, the bus should have gone off to Glasgow Airport but failed to do so. They continued to follow the bus on the M8 to Junction 19 where it should have gone off to the Glasgow SECC but it failed to do so. They followed the bus along the M8 when it went onto the A80. The bus continued along the A80 and should have left to go onto the A752 to Muirhead but failed to do so.
Registration/25 – operating as the 225 Arbroath to Ayr fortnightly on a Monday
11. This service was monitored on 1 June. The BCOs followed service 225 by car from Greenloaning Little Chef on the A9 to Ayr. One timing point is Bothwell Services on the M74, for both inward and outward journeys. They discovered that the timing point can only be accessed on the journey going to Ayr but not on the return. There was a timing point in the timetable given as Loudon Castle and they took it that the bus would go to the coach park at Loudon Castle, which is about half a mile off the A71. The driver failed to do that. As Mr Cosgrove had produced a Google map of the A71/A719 roundabout, the BCOs were able to show me where the car park entrance was and this was going northwards on the A719 about half a mile from the roundabout. On the map I could see there were bus stops indicated on the A71 on the east side thereof, on both sides of the road.
12. Another timing point on that route is the Bellfield interchange at Kilmarnock where there are no bus stops but Mr Cosgrove had told them that the bus is meant to enter at the BP garage and go to the Travel Lodge and then exit back onto the A71. Again, this could be demonstrated to me by reference to the aerial picture which Mr Cosgrove produced at the Inquiry. On the occasion of the monitoring on 1 June 2009, the bus did not go into the BP/Travel Lodge site. Two other timing points state the Stonehouse bus stop on the bypass whereas there are 3 bus stops on this stretch of the road and the Strathaven bus stop and the bypass where there are 2 bus stops on that stretch of road and the BCOs could find no indication on the timetable which bus stops were the actual timing points intended. The bus is scheduled to leave at 15:30 from Carrick Street, Ayr outside the Gaiety Theatre but instead left from Boswell House at Boswell Park.
Registration/34 - operating as the 233 Brechin to Leith Ocean Terminal fortnightly on a Wednesday
13. This service was monitored on 20 May 2009 at Kinross High Street, Leith, Waterloo Place in Edinburgh and Edinburgh Queensferry Road. The bus was followed from Kinross High Street to Waterloo Place and was not held up by the tram works, given the dedicated bus lanes. The driver picked up passengers in the car park at Ocean Terminal but did not go into the bus lane and did not go to the bus stop at Ocean Terminal.
Registration/39 – operating as the 238 Arbroath to Leith, Ocean Terminal
14. This service was monitored on 13 May. The monitoring was carried out at Kinross High Street, Forth Bridge tolls, Edinburgh Queensferry Road, Edinburgh Waterloo Place and Edinburgh Leith. They followed the bus S151JUA from the Forth Bridge at 10:15 heading to Barnton timed at 10.22. It took 17 minutes to Waterloo Place yet there was only 10 minutes for that on the timetable. Waterloo Place to Ocean Terminal took 11 minutes. The bus left Ocean Terminal at 15:01 and reached Waterloo Place at 15:26 that is 16 minutes late, then left Waterloo Place at 15:31 and arrived at Barnton at 15:51 making it 31 minutes late there.
Registration/33 – operating at 232 Brechin to Stirling fornightly on a Tuesday
15. This was monitored on 19 May from Gleneagles Railway Station at 9:53 where it was 11 minutes late at 10:01. They followed it towards Stirling where it passed the Little Chef A9 also 11 minutes late.
16. The BCOs set out their findings in an analysis on a spreadsheet which was within the Public Inquiry brief.
17. As is their normal practice, they sent their results to the operator giving the operator an opportunity to comment. The operator’s letter of response was dated 9 June 2009 and was in the brief. There was then a visit to the operator when the findings were discussed. They told him to operate to Glasgow Airport via SECC and Muirhead and also to Bellfield interchange and Loudon Castle. They also discussed the Edinburgh road works. The timetable of 10 minutes between Barnton and Waterloo Place was discussed, they advising Mr Cosgrove that even in a car it took 17 minutes. Mr Cosgrove indicated that he would put in variations for the Brechin/Arbroath to Largs timetable, the Brechin/Arbroath to Ayr timetable and the Brechin/Arbroath to Edinburgh timetable.
18. The monitoring was of these services as local registered services. The BCOs noting the 8 – 15 minutes travel time between stops, the latter being the maximum expected between nominated stops. Each service featured substantial travel on motorways and primary routes and it was their view that times shown and registered on the timetables could not be achieved given the time, distance and attendant traffic. They had prepared a table based on running time and distance using information from the AA/Google maps. They were basing this on the time taken by a car. A car would take longer between Arbroath and Leith and Arbroath and Ayr.
19. They calculated a percentage non compliance rate of 73 percent.
20. In response to questions from myself at the Public Inquiry, Mrs Riley told me that, at no time, during their monitorings did they see Fishers Tours coaches stop and uplift passengers. There were passengers on the coaches on all of the different days that they monitored. They did see people getting on at Edinburgh to go back on the coach and at Largs and at Ayr, that is the people who got off the outward journey got back on again to travel back. There was no one at any of the intervening stops. The bus looks like a coach and looks as if it is engaged on a coach tour. I asked Mrs Riley if she was at a bus stop awaiting in the hope of public transport would she have thought to step and put her hand out for this vehicle and she said she would not, as she would not have known where the bus was going. The destination was only shown on an A4 card on the window with the service number. There was only the final destination so no one would know the route. I asked Mrs Riley if she thought that the registration was a sham and her response was that she did not think it was a local registration.
THE OPERATOR’S RESPONSE
21. The operator’s response to the monitoring was contained in Mr Cosgrove’s letter of 9 June 2009 to Mrs Riley. As well as the latter, he attached various documents. He also gave evidence at the Public Inquiry and responded to my questions. He denied that there had been any failure to operate. The alleged failures to operate journeys occurred as drivers by passed the stops to make up lost time. He blamed this on the road works at Castlecary and congestion at Glasgow. Additionally, he commented that if the coach was held up for any reason, it was difficult for the driver to make up lost time and the driver will always be late for the remainder of the journey. The company does not condone drivers missing out stops to make up for lost time. The operator had told drivers in March and April 2009 of the need to service all stops on the route and he attached copies of letters dated 13 March and 23 April 2009. Following the monitoring exercise, the company looked at how they could police the routes so that drivers did not miss any of the scheduled bus stops. They have started what they called a self policing report on 8 June 2009. He said that disciplinary action had been taken against the drivers involved who all lost one day’s holiday pay. He also enclosed reports for the journeys noted in the monitoring. The company had invested in new tachograph instruments supplied by Stoneridge Electronics. He hoped that in the future due to the difference in time taken to analyse the tachographs using the new equipment, as opposed to old hand held disc checkers, that they would be able to do a faster and in depth analysis of the discs supplied by the drivers.
22. A letter of 13 March 2009 to Scottish Express drivers advised drivers that it was their duty to ensure that all daily services are carried out as per the timetables and to service all stops on the route and not to make assumptions that there will be no one waiting on the return journey. They advised that spot checks were liable to be carried out by the Traffic Commissioner’s office, Transport Scotland and SPT and also they themselves. There was a warning of liability to prosecution and that drivers could be suspended from their duties.
23. The template self policing report provided for the driver’s name, date, coach registration, route number, check at the start and finish and the name of any inspectors and their employers if travelling on the bus, for example, VOSA, Scottish Office, Strathclyde. The form provided space for a description of route problems outward and inward.
24. The operator’s letter of 23 April 2009 to drivers concerning a partially sighted passenger waiting on 14 April for on the 242 from Fort William to Forfar , who had been left standing at Canal Street as the bus did not go to the stop. The letter stated “This could have serious repercussions if this passenger decides to inform Transport Scotland of this incident. As we have stated, all designated stops must be served regardless of whether you think there will be anybody standing there or not. Just because they have not booked, does not mean they will not be standing at a designated stop waiting”.
25. The operator prepared some reports and analysis. There was a report on the difficulty on 13 May 2009 to the 238 Arbroath to Leith via Edinburgh. The typed report narrated hold ups between Barnton and Waterloo Place due to the tram road works and that would account for the service being 11 minutes late. The report attributed excessive traffic and day tours between Leith and Waterloo Place causing the service departing Ocean Terminal 15:01 to be late. By being late at Waterloo Place, all other stages were late. There was nothing else the driver could have done.
26. He included a report of 15 May 2009 when the driver was Brian Robertson and he attached details of Mr Robertson’s chart. From that he took certain timings. The chart showed that the service stop at Glasgow Airport was not done and he narrated that with the road works it appears that the driver bypassed the Glasgow Airport bus stop to try and make up lost time. He also took from the journey from Largs to Brechin that there were hold ups going through Glasgow from 16:31 to 15:31, when the coach was in traffic and that made the driver late for all other stages. The report said that given the road works at Castle Cary, the drivers on the Glasgow and beyond routes will also have a problem keeping to the schedule. A similar report was available for the journey of 19 May undertaken by Mr Robertson on the Brechin Stirling run with his chart details, including hold ups on the route. Similarly, for the journey of 20 May 2005 undertaken by Mr Brian Robertson from Brechin to Leith, via Edinburgh and by Mr William Martin on 22 May from Arbroath to Largs when it is indicated that some of the route was omitted; again for Mr Craig Lenehan on 29 May 2009 on Brechin to Largs, with the driver bypassing Muirhead, Glasgow SECC and the Glasgow Airport bus stops. The last report was for Mr Brian Robertson and a chart of 1 June 2009 on the Arbroath to Ayr run when the coach was not up to schedule and there were no hold ups on the way back.
27. When the Scottish Government decided that there would be free travel for over 60s and the disabled and the facility for eligible people to travel free of charge from one end of Scotland to the other, he looked at the market and decided that he would register these journeys as local services. A local service can be any length. It does not have to be 6 miles from the base. As long as he had a bus stop, a designated point every 15 miles or every 15 minutes, then it made it a local service and that is why they went down that road. They did a lot of day tours in the past as Fishers Tours and that market just quashed because people were not going to pay £12 to £14 if they could travel free. So the tours route would be evaporating in favour of free transport. They had not done anything against the law. The registrations were in place and they had been operating them. He had heard talk that they were a sort of bad plum in the basket because they were taking money from services. They claim concessionary fares from Transport Scotland and BSOG.
28. They do seat reservations but a lot of customers do go to the point of departure in Arbroath and Carnoustie. They do not get people getting on every day at other places, for example at Greenloaning were the BCOs looked, though they have picked up passengers from Greenloaning for Largs where people’s sons or daughters have run them down in a car for example from Crieff. They find that they would pick up Glasgow folk and take them to Arbroath because they have got a caravan there so people are beginning to realise what they could book and what the timetable was and so people were using the Ayr and Largs Buses on the different days. The people in their office tell about other operators’ connecting services. They do take fares. They get people in the summer going to Inverness and Fort William and Oban.
29. Local Councils provide bus stop information and they put out their timetables in Glasgow and at various tourist offices, for example in Crieff.
30. In response to a suggestion that it might be considered that on the evidence of the monitoring of these 6 services over the 7 days that the local registrations were a sham and that he had just put it down on paper to get the advantage of concessionary fares and had not been operating the services at all properly and not going to the places where he should have been doing, he admitted that the drivers had not been going to where they should have been and that it was the drivers’ fault. He was not driving the vehicles. BCOs had not followed the whole route. Transport Scotland had been in and have checked and have not found problems. He disagreed that it was a sham, totally disagreed and considered that they conducted the services in the proper manner and he has rectified what he should have done. He has taken drivers on trust and they have let him down. The law had allowed him to register the routes and he had done nothing wrong. He is doing what the legislation asked them to do, to supply a service to allow that generation of older people to travel the length and breadth of Scotland and they provide that service. Only they had taken on board the challenge.
31. They have spent money on a tracker system to resolve the problem costing about £650 each – in 3 vehicles and they will do more every month. They are going to do them on the school vehicles. They have 25 vehicles in the fleet and operate 2, that is leaving them 2 as back up. They have dedicated vehicles with the Scottish Express livery and he pointed that out to me in the photographs on his timetables. If there is any restriction on him being able to register local services that would affect his school his contracts because they require to be registered services. He was doing school contracts before the Government’s policy in relation to concessionary fares. They were doing private hire and still do private hire and extended tours and day tours. They abandoned many of their tours for the Scottish Express. Their tours are popular in Arbroath and Brechin and with Dundee people. There was less advertising in these Scottish Express tours and it is more lucrative.
CONSIDERATION OF THE EVIDENCE AND MY DECISION
32. Section 2 of the Transport Act 1985 defines local service as meaning a service, using one or more public service vehicles, for the carriage of passengers by road as separate fares, other than one –
(a) which is excluded by sub section (4) (below); or (b) in relation to which (except in an emergency) one or both of the conditions mentioned in subsection (2) below are met with respect to every passenger using the service.
(2) The conditions are that – (a) the place where he is set down is 15 miles or more, measured in a straight line, from the place where he was taken up; (b) some point in the route between those places is 15 miles or more, measured in a straight line, from either of those places.
(3) Where a service consists of one or more parts with respect to which one or both of the conditions are met, and one or more parts with respect to which neither of them is met, each of those parts shall be treated as a separate service for the purposes of subsection (1) above.
(4) A service shall not be regarded for the purposes of this Act as a local service if (a) the conditions set out in part III of Schedule 1 to the 1991 Act (trips organised privately by persons acting independent of vehicle operators etc) are met in respect of each journey made by the vehicles used in providing the service; or (b) every vehicle used in providing the service is so used under a permit granted under section 19 of this Act.
33. Section 6 of the Transport Act 1985 provides for the registration of local services and for the making of regulations and for excluding from the application of that section services which are (i) excursions or tours and (ii) excursions or tours falling within a prescribed class. The applicable regulations in Scotland are the Public Service Vehicles (Registration of Local Services) (Scotland) Regulations 2001. These provide for the registration process, notifications and particulars. Regulation 11 provides that section 6 of the Act shall not apply to services which are excursions or tours except any services operated at least once a week for the period of at least 6 consecutive weeks.
34. Regulation 14 provides that (i) subject to paragraph (II), the operator shall, during such time as a vehicle is being used to provide a service, cause – (a)…………………………..(b) to be displayed a notice clearly legible from the exterior of the vehicle, indicating the destination and the route number. (2) This Regulation shall not apply to a vehicle being used to provide an excursion or tour.
35. Schedule 1 sets out the prescribed particulars under Section 6 of the 1985 Act
36. This operator has a history of running coach tours and also of doing school transport work and private hire work. The school contracts were registered as local services, then in May 2006 the operator registered a range of services to operate from either Arbroath or Dundee or Brechin with services ranging from numbers 221 to 251 and with destinations in further parts of Scotland and return the same day. That is one outward and one in inward journey once per fortnight. These journeys would be fortnightly and all year. (List of registrations within the Public Inquiry brief). 6 of such registrations were monitored by VOSA Bus Compliance Officers between 13 May 2009 and 1 June 2009. Their report casts doubt not only on the punctuality of the said services but also on whether the services were being operated as local services. The local service registrations were copied into the Public Inquiry brief and I have had regard to them. I do not see the need to rehearse the detail of timetables and routes in this decision.
37. In order for these services to have been registered by my office, the 15 miles provision had to be met. On the face of it, the registration particulars satisfied that criterion. The operator structured the timetable and description such that on the face of it, these appeared to be bona fide registrations.
38. What the monitoring disclosed was prevalent behaviour by drivers in missing out sections of the routes. I find as fact that these services were not being operated according to the registered particulars and that such failure to operate was prevalent and could have been eradicated by the operator if the operator had so chosen. I am in no doubt having heard the evidence of the Bus Compliance Officers and that what they saw at the various locations was not the compliant or expected operation of a local service.
39. I am not satisfied that the requirement in relation to display of a destination such that persons at a bus stop would know that a local service was approaching was satisfied.
40. The operator had diverted from using bus stops referred to in the registrations, for example at Largs and at Ocean Terminal. The operator was behaving as if these were coach tours rather than local registered services. Bus stops were not being used according to the registered particulars.
41. The only persons successfully boarding at intermediary points were pre-booked travellers. The Bus Compliance Officers saw no individuals attempting to board the operator’s services. The operator’s evidence contained mention of a blind lady who had sought to use the service without booking but by turning up at the bus stop. This service did not operate for her. The operator’s letter to his driver about the incident revealed more concern about being caught by Transport Scotland than distress for a potentially vulnerable traveller.
42. The operator has tachograph evidence available to him. For the tachograph evidence available at the Public Inquiry, it was quite clear that the journeys undertaken by the drivers did not match the registered particulars. Thus, the operator had its own evidence to show that the services were not being run. I state this for I have taken time to look at the tachograph records against the timetables e.g. at the early stages of the runs.
43. The operator blames the drivers and being let down by drivers. The operator had within his knowledge the information which would have demonstrated to him that his services were not compliant with the registered particulars. The operator has not de-registered the services nor varied them. That is significant, that the operator has not taken any steps since the BCO report to vary any of these services.
44. It was not in dispute that the motive for the registration of these services was so that the operator could take advantage of the Scottish Government’s concessionary fares scheme which allows free travel to elderly persons and others across Scotland. Thus, the operator sought to attract passengers to these services who might otherwise be deflected from coach tours or trips by reason of price. The services are attractive and popular. There are some fare paying passengers but the momentum for the services comes from the concessionary fare scheme and the advantage of being able to claim BSOG.
45. I discount the operator’s evidence of recent measures to track his vehicles and of “Self policing” reports. These have arisen following the VOSA Bus Compliance exercise. It is apparent from the operator’s productions that the operator had a reasonable apprehension that his service would attract adverse attention from the regulatory agencies. It is difficult to assess how genuine the operator’s efforts at compliance are. I have a great doubt given the absence of any variations.
46. The BCOs demonstrated that some of the services cannot be run to the timetables registered. Thus, even discounting delays through traffic congestion, the timetables are in such instances not capable of punctual performance.
47. The operator claims that many of the journeys will have been delayed by road congestion. I accept that at Castlecary, near Cumbernauld, road traffic conditions can become very bad and that there is a risk of delay. There will be similar “pinch points” in journeys as long as the operator sought to register. Any operator registering local services of such length has to build into the timetable provision for such, that is what the experienced operators of long distance services do and become accomplished at.
48. It is possible to register and operate compliantly long distance local service registrations. Such registrations are not unknown in Scotland - for example as operated under the City Link brand. Other operators know that they cannot run long distance services as local services because to incorporate the local would be to delay unacceptably the longer journey. I am thinking of the coach services which run between the main cities such as operated by Stagecoach, City Link and National Express.
49. This operator has tried to take advantage of the concessionary scheme, the availability of BSOG and the facility within section 2 and section 6 and the Regulations to allow for long distance service regulations. However, the operator has blatantly failed to operate compliantly. I am in no doubt that the inclusion of places such as Muirhead, Glasgow airport, SECC and so on was simply a device to qualify for concessionary travel and that there was not ever a commitment to serve passengers from those locations.
50. It may be asked how can I justify extrapolating from these monitorings to such a broad conclusion. My starting position is that it is for the operator to register particulars which are accurate and capable of being performed. It is not for me to send someone out to check that. Obviously, from time to time, there will be some glaring matters which can be spotted by administrators in my office of which may be highlighted by local councils. However, the onus is on the operator to register a service which can be operated. What came out of this case was that whilst on paper it looked as if these services could be operated, in practice they cannot be. I give as examples of this that there were not bus stops where there should have been bus stops and that the running times were not possible in some instances. I have to be able to trust an operator and to trust that the operator is running compliantly. It is not surprising that I did not receive any complaints about these services for many of the travellers would be delighted to have what effectively are free coach runs to most agreeable destinations. Thus, what was being operated was lovely for the operator in terms of increased business, income generation, less need to advertise or work hard for business, and excellent for the passengers in terms of free travel for a great number. I myself when considering these registrations when they first came in did not find them without merit for it can be difficult to get from some of the smaller towns of Scotland to other smaller towns of Scotland and thus as an option within the public transport menu such registrations and the creativity behind them received a positive wind from my office. However, that was on the premise that the services can be run compliantly and are compliant. Bus Compliance Officer evidence is very valuable to me for I often say in Public Inquiries that the Bus Compliance Officers stand in place of the public. Thus, they are not bus operators and they are not the Traffic Commissioner, they are individuals who go out to locations to get buses or to see if buses turn up at bus stops. They stand in place of the person who, for example, has picked up a leaflet or who has consulted Traveline or who has looked at the information at a bus stop and stands there expectantly. That person in terms of the regime for bus operation in this country is entitled to have an expectation that the bus will turn up other than in circumstances of reasonable excuse. That person would also have to be able to recognise the service. This is a difficulty in this case because anyone at the road side seeing the vehicles which I was able to see in the photographs would think this was a coach trip and would not think that this was a bus that they could hail and get on. I make this point because it demonstrates that whilst the registration on the fact of it might be saying to the world that there is a bus service available to you on this route at these times, all the behaviours of the operator were such that there was no expectation of any passengers en route other than those who had telephoned in advance and there was no active encouragement or drawing in to encourage local use. It is interesting that no one got off the bus other than at the terminus.
51. I have come to the conclusion that these registrations are not local services for the purposes of section 2 and the Regulations. I gave this operator a chance to show that it was possible to do what they claimed they wished to do, but in practice it does not work.
52. I find that the operator is in breach of section 6. I find that the services have not been run and therefore I am entitled to impose a penalty under section 39 of the Transport (Scotland) Act 2001.
53. This case was not called up on repute so I am not considering the operator’s repute. It was called up in relation to the licence undertakings, in particular, that undertaking to make proper arrangements to ensure that the laws relating to the driving and operation of vehicles to be used under this licence are observed. I am also looking at section 26 of the Transport Act 1985.
54. I consider that the appropriate course of action in this case is for me to direct that the 6 local service registrations will be treated as cancelled. This I do by imposing a condition on the licence that these services will be not operated after a date. I have considered what date to chose and I am mindful that there may be some pre-bookings. I consider that a period of the whole of January should give the operator time to indicate to the public that the services will no longer be available from that date. I will also impose a further condition preventing the registration of any further local services other than school contract services or services which serve places within the areas of Angus Council and Dundee Council.
55. I now consider whether to exercise my powers under section 39. If I was to use the widest availability of that power I would use the maximum figure of £550 with a multiplier of 23, making a total of £12,650. I consider that this is a case in which such a penalty is appropriate and proportionate for this is an operator who has ploughed a lucrative seam and who will have taken business away from others who have engaged, professionally, knowing that such services could not be operated compliantly. They will also have taken some work away from coach operators such as their former selves. They, of course, can return to that type of work. The level of non compliance even allowing for some roadworks delays falls within the band for the maximum penalty as set out in the Senior Traffic Commissioner’s Practice Direction.
56. I order that the payment be made to Scottish Ministers by 31 January 2010.
57. The operator’s other services were not called to Public Inquiry. That is because I had not heard the evidence in this case and I had not heard the operator’s side of the story. However, having heard the evidence in this case a question mark now hangs over all of the other long distance local services operated by this operator. I invite the operator to cancel these services. If they do so that will bring an end to this episode in the operator’s history and will allow the operator to revert to that which can be done. If the operator does not take up this suggestion, then obviously I will have to consider calling the operator to another Public Inquiry at which I would consider the other registered services.
58. I have no evidence of any adverse matters in relation to the operator’s school contract registered services and these should be unaffected by this decision. All are within Dundee and Angus.
59. Finally, in relation to the operator licence apart from the aforementioned conditions, it will be noted that I have taken no action against the substantive licence. Thus, I leave the way open to the operator to engage in school contract work, local service provision within a nearer geographical area to their operating centre and general PSV private hire work. Thus, I have come to a proportionate and balanced decision. It will be open to the operator in future to request that I vary or remove the restriction on the geographical range of any future local services and to persuade me or otherwise.
SUMMARY OF THE DECISION
1. The operator is ordered to pay a penalty of Twelve thousand six hundred and fifty pounds to Scottish Ministers (£12,650 i.e. 23 x £550) by 31 January 2010.
2. There will be a condition put on the licence preventing the operator from registering any new local services serving places outwith the areas of Angus and Dundee City Council, and this with immediate effect.
3. There will be a condition put on the licence preventing the operator from operating local services registrations PM2937/21; 25; 33; 34; 39; 46 with effect from 23:59 on 31 January 2010 and these services will be treated as cancelled from that date.
Joan N Aitken
Traffic Commissioner for Scotland
21 December 2009
