Neutral Citation Number: [2009] UKUT 218 (AAC)

Appeal No.  2009/412

IN THE UPPER TRIBUNAL            

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF

T.M. MACARTNEY TRAFFIC COMMISSIONER for the

NORTH EASTERN TRAFFIC AREA Dated 3 June 2009

Before:

Frances Burton

Leslie Milliken

David Yeomans

Appellant:

B L and SS ROBSON T/A ROBSONS FARMS

Attendances:

For the Appellant: Mr B. Robson

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.

REASONS FOR DECISION

1.               This was an appeal against the decision of the Traffic Commissioner for the North Eastern Traffic Area dated 3 June 2009 when he issued a Formal Warning to the Operator in respect of the restricted licence issued to the partnership B L and S S Robson trading as Robsons Farms which was authorised to operate 3 vehicles and 2 trailers.

2.               The factual background appears from the documents, the transcript of the public inquiry and the Traffic Area Office’s decision letter on behalf of the Traffic Commissioner and is as follows :

(i)              The operator was called to a public inquiry held on 3 June 2009 due to an unsatisfactory maintenance investigation, prohibition notices and apparent failure to comply with undertakings and a statement of intent upon grant of the licence in February 2001 to keep vehicles fit and serviceable, to use an appropriate drivers defect reporting system, to keep records for 15 months of such reports, PMI and routine maintenance sheets and make them available on request and to have adequate financial resources to maintain vehicles. At the time of the PI, 2 vehicles of 7.5 tonnes were in possession.

(ii)             At the PI evidence was given for VOSA by VE K. Donaldson who provided a written statement. The operator was engaged in waste removal by skips. There had been a maintenance investigation on 7 and 8 January 2009 occasioned by a roadside check resulting in the issue of a prohibition to a Leyland Daf skip wagon with an ‘S’ coded item for deterioration of the driver’s cab step which was badly weakened and liable to become detached. At the maintenance investigation the records were found to be deficient and PMI intervals of 6 weeks had been exceeded. There was no Drivers Defect Reporting system or Forward Planner.

(iii)            At the maintenance investigation the operator had been co-operative and at the PI both Mr Brian Robson and his son Mr Andrew Robson attended. However the evidence of VOSA at the PI established that there had been a breach of undertakings and statements of intent and moreover that at annual test the vehicles were achieving a 100% failure rate, despite the fact that Mr Andrew Robson had a B Tec in Engineering and was responsible for the mechanical work on the vehicles. The Robsons conceded that the deficiencies reported by VOSA were accurate but explained that they had expansionist plans and that everything would be in order in future.

(iv)           Upon completing the PI the Traffic Commissioner gave no oral decision but later took the action referred to in paragraph 1 above.

3.           At the hearing of the appeal Mr Brian Robson attended personally. He submitted to us that the defects which had led to the PI and the formal warning would never have occurred if VOSA had done as they were asked by the Deputy Traffic Commissioner who had granted the licence. They had given the DTC an undertaking to make an advisory visit but had never done so. Moreover the partnership had never been invited to any new operators’ seminars nor had any attention been paid to them at all: they had simply “been left in limbo” for 8 years. Had the advisory visit been made all paperwork would have been in order. In the circumstances, Mr Robson said, he felt the Formal Warning was wrong and unfair.

4.           We explained to Mr Robson that the Guide to Operators (in which he drew our attention to the advisory role of VOSA) was only a guide and that it was not mandatory for VOSA to visit. Moreover, operators could always contact VOSA and request an advisory visit. We asked him whether the Traffic Commissioner was either wrong or his decision disproportionate in issuing a Formal Warning for admitted deficiencies in maintenance of the vehicles and maintenance systems. We pointed out that if the Traffic Commissioner was not plainly wrong we were unable to find a basis for allowing an appeal and that there was neither any financial impact from the Formal Warning, nor any necessary further impact at all provided the vehicles were now kept in good order so that no action was likely. Mr Brian Robson subsequently sent us a written account of his systems dated 17 September 2009 (received on 22 September 2009) which he said he had intended to bring to the hearing. We hope that indicates that he has understood that there need be no future adverse impact on his licence provided the vehicles are satisfactorily maintained.

5.           Accordingly we dismiss the appeal. 

Frances Burton

                                                                                                10 October 2009