Neutral Citation Number: [2009] UKUT 216 (AAC)

Appeal No.  2009/410

IN THE UPPER TRIBUNAL            

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF

Lester Madrell DEPUTYTRAFFIC COMMISSIONER for the

WEST MIDLAND TRAFFIC AREA Dated 22 May 2009

Before:

Frances Burton

Leslie Milliken

David Yeomans

Appellant:

WARSTONE MOTORS LIMITED

T/A THE GREEN BUS SERVICE

Attendances:

For the Appellant: Stephen Climie of counsel

Heard at:                       Victory House

Date of hearing:           11 September 2009

Date of decision:         10 October 2009

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED and the Deputy Traffic Commissioner’s Order will take effect at 23.59 hours on 14 November 2009.

REASONS FOR DECISION

1.               This was an appeal from the decision of the Deputy Traffic Commissioner for the West Midland Traffic Area dated 22 May 2009 when he revoked the Appellant’s PSV operator licence under s 17(1), 17(1)(a), 17(1)(aa) and 17(1)(c) and Schedule 3 of the Public Passenger Vehicles Act 1981 with effect from 23.59 hours on 30 June 2009, on the grounds of loss of repute and loss of professional competence; the Appellant and Graham Frederick Martin were further disqualified under s 28 of the Transport Act 1985 as amended, for 1 year commencing on 1 July 2009, and Graham Frederick Martin lost his repute as a Transport Manager.

2.               The factual background appears from the documents, the transcript of the public inquiry and the written decision of the Deputy Traffic Commissioner and is as follows :

(i)              The Appellant company held a standard national PSV operator’s licence. Its sole Director was Graham Frederick Martin who was also its sole Transport Manager. 15 vehicles were authorised with 15 discs in possession. It conducted its own maintenance and operated local buses and school runs. The Appellant company was called to public inquiry on 22 May 2001 for maintenance issues, when the authorisation was reduced to 16, and again on 2 April 2003 when an undertaking was given for 3 weekly PMI intervals and the authorisation was reduced to 15. There was a further unsatisfactory maintenance investigation in March 2007 which resulted in issue of a warning letter.

(ii)             There was a further public inquiry on 14 October 2008 for 28 prohibitions, poor test history, deficiencies in record keeping and 4 untaxed vehicles. The PG9s in 4 instances dated back to March 2004 and the DTC considered all of these. The Appellant and Mr Martin were represented by Mr Michael Carless, Solicitor.

(iii)            At the PI, evidence was given by VE Neil Brown that he had made an unannounced visit to the operating centre on 10 December 2007 and arranged a further visit the next day as all vehicles had already left for the day. However when he arrived the next morning all drivers had again left. The DTC deduced from this that Mr Martin and the drivers had not wished to co-operate with VOSA. On 18 March 2008 VE Brown again returned unannounced, with VE Austin Jones and VE Timothy Cropper when they examined 11 vehicles, finding 4 untaxed (with licences expired at the end of February 2009, some two and a half weeks previously). No vehicle was free of defects and 3 immediate and 2 delayed prohibitions were issued plus numerous advisory notices. A vehicle was driven away before it could be examined and 1 vehicle was driven away onto the public road after receiving an immediate prohibition for inoperable power steering, showing disregard for public safety.

(iv)           At the time of the PI, 2 new staff had been engaged, Mr Ken Dunn (to make weekly inspections) and Mr Philip Ball (to be responsible for maintenance) with Mr Martin still in overall charge. Roller brake testing was asserted to be taking place though there was no proof of this. 7 out of 8 vehicles had failed the annual test up to October 2008 and drivers were not responding to voicemail messages. There was a further maintenance inspection during an adjournment of the hearing and on 17 November 2008 and 9 January 2009 Vehicle Examiners found further defects in all 20 vehicles. It was claimed these were the fault of Mr Ball who left the company on 8 January 2009 but the DTC did not accept that this absolved Mr Martin, who also claimed that missing PMI sheets from September 2008 had been misappropriated by Mr Ball. A Mr Brown was taken on to replace Mr Ball in January 2009.

(v)             As a result of this history the DTC concluded that Mr Martin could not be left in charge of the business on the basis that the vehicles would be kept in proper condition. He found that Mr Martin, having failed over a sustained period, either did not have, or had lost, the ability to control the business and its employees and took the action referred to in paragraph 1 above.

3.           At the hearing of the appeal the Appellant was represented by Mr Stephen Climie of counsel who presented us with a helpful skeleton argument for which we were grateful. Mr Martin sent his apologies.

4.           Mr Climie conceded that there were significant issues arising from the public inquiry but submitted that evidentially some of the DTC’s conclusions were erroneous. He submitted that there had been no intention to avoid VOSA’s visits and that other instances where the Appellant should have been given the opportunity to answer issues raised and to cross examine on the evidence given were occasioned by poor representation by the solicitor in attendance. He added that Mr Martin did not know of the prohibition when the vehicle with defective power steering was driven onto the road. He further asserted that roller brake testing was being carried out but that the DTC had never asked for evidence that it was. He submitted that the January 2009 VOSA visit had been generated by “sabotage” by Mr Ball, who had just left the company at that time. He also submitted that there were concerns about the fairness of the hearing, including failure to warn of the possibility of revocation, and that the DTC’s balancing act gave insufficient weight to positive factors. He requested us to order that the PI should be reheard or that, in any case, the sanctions in place should be reduced as they were disproportionate.

5.           Mr Climie took us through the DTC’s decision indicating each place where he submitted the DTC was in error. However we were concerned by the extent of the deficiencies in the Appellant’s systems and by the breakdown in monitoring of the operation by the Transport Manager. We were also concerned by the obvious management issues in addition to the deficiencies of Mr Martin as Transport Manager. Our sole question was whether, as a cumulative result of all these inadequacies, Mr Martin deserved to lose his repute and to be put out of business. Our answer to that question must inevitably be “Yes”. Revocation is not disproportionate where, in the absence of any objective justification and excuse, there have been long term, sustained, repetitive deficiencies. We therefore dismiss the appeal.

6.           After canvassing an appropriate time for an orderly windup of the business with Mr Climie, we direct that the orders of the Deputy Traffic Commissioner shall come into effect at 23.59 hours on 14 November 2009.

Frances Burton

                                                                                                10 October 2009