Neutral Citation Number: [2009] UKUT 221 (AAC)

Appeal No.  2009/465

IN THE UPPER TRIBUNAL            

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF Philip BROWN

TRAFFIC COMMISSIONER for the

SOUTH EAST & METROPOLITAN TRAFFIC AREA Dated 25 June 2009

Before:

Judge Frances Burton

Patricia Steel

George Inch

Appellant:

SECURE TRANSPORT & TRADING LTD

Attendances:

For the Appellant: No appearance

Heard at:                       Victory House

Date of hearing:           22 September 2009

Date of decision:         20 October 2009

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

REASONS FOR DECISION

1.               This was an appeal from the Decision of the Traffic Commissioner for the South East & Metropolitan Traffic Area dated 25 June 2009 when he revoked the Appellant company’s standard international goods vehicle licence under ss 26(1)(b) and (h) and 27(1)(b) and (c) (failure to provide financial evidence to comply with a condition on the licence, material change – no longer having a nominated Transport Manager nor able to satisfy the requirement to be of appropriate financial standing – and no longer professionally competent).

2.               The factual background appears from the documents, the transcript of the public inquiry and the Decision letter from the Traffic Area Office and is as follows :

(i)              On 3 November 2008 the Appellant company was reminded that in May 2008 there had been no response to letters from VOSA on 3 occasions when a fleet inspection had been requested, as a result of which the Traffic Commissioner’s office had sent a letter threatening revocation.  Financial standing was also in issue. This concern had produced a letter from the then Transport Manager enclosing a letter from a Turkish bank and a bank statement, but these had not been acceptable as the bank’s letter contained a disclaimer, although the Transport Manager had written again to say that the letter had been accepted in the past. The Appellant company had then been asked for further financial information after a Deputy Traffic Commissioner had confirmed that the letter was definitely not acceptable.

(ii)             The Deputy Traffic Commissioner subsequently accepted that further information supplied sufficiently demonstrated financial standing but a condition was then attached to the licence requiring bank statements for July, August and September to be submitted to the Traffic Area Office by 14 October 2008. No bank statements were received. The Transport Manager, Mr Mustafa Yeshilishik, then wrote on 17 September 2008, stating that he was resigning from his post and that he had had no involvement with the Appellant company or its vehicles since August 2008. This left no Transport Manager nominated on the licence.

(iii)            On 17 October 2008 a Vehicle Examiner from VOSA attempted to carry out a fleet inspection but were unable to do so because the Appellant company had moved from its authorised operating centre and, according to the owner, had done so 3 or 4 months previously. Potential action under ss 26(1)(a), (1)(b), (1)(e), (1)(f) and (1)(h) and 27(1)(a), (b) and (c) was therefore notified in a call up letter for a public inquiry and the Appellant company was required to show finance of £16,400.

(iv)           The Public Inquiry was eventually convened on 9 March 2009 and was attended on behalf of the Appellant company by Mr Halil Vural, Director, and Mr Yeshilishik, the former Transport Manager. Mr Vural drew the Traffic Commissioner’s attention to Mr Yeshilishik’s earlier correspondence in which it had been reported that he had no vehicles in possession as they had been stolen but that he wished to resume operating. Financial evidence was heard in camera. Subsequently the Office of the Traffic Commissioner sent the Appellant company a letter dated 9 March 2009 which recorded the Traffic Commissioner’s decision to reduce the Appellant Company’s authorisation from 4 vehicles to 1 with immediate effect, to grant a period of grace until 31 March 2009 by which the Appellant was expected to have nominated a new Transport Manager holding a CPC, and to require sight of the later 3 months bank statements by no later than 23.59 hours on 31 March 2009 (making this a condition on the licence).

(v)             On 31 March 2009 the Traffic Commissioner received a letter from a Transport Consultant, TMC Assist Limited, stating that Mr Vural was not currently operating any vehicles and had misunderstood the condition to mean that he should supply 3 months bank statements from 31 March 2009, not up to that date, which was a period when he was not operating. The writer went on to confirm that Mr Vural was in the process of selling a property in order to finance the business and would be in a position to deposit funds from 1 April 2009 as a result of which he requested an extension to 12 July 2009 to deposit bank statements from 1 April 2009 to 30 June 2009. He further requested an extension either to find a suitable Transport Manager or to train and qualify as a CPC holder himself. In the meantime he requested the Traffic Commissioner to accept in lieu of a new Transport Manager the retainer into which he had entered with TMC Assist Limited for them to attend his premises monthly to provide the necessary compliance support and guidance. This was supported by Mr Vural’s written undertakings, a copy of the retainer contract. In response the Traffic Commissioner extended the period of grace for production of financial evidence and nomination of a new Transport Manager to 30 April 2009, and later to 31 May 2009.

(vi)           On 3 June 2009 the Traffic Commissioner’s office wrote to the Appellant company pointing out their failure to comply with any of these deadlines, inviting any representations before the case was submitted to the Traffic Commissioner and drawing the operator company’s attention to its right to request a public inquiry before any action was taken, but that unless any response to the Traffic Commissioner’s Office’s letter was received by 24 June 2009 the Traffic Commissioner would in any case consider whether the licence should be revoked, following which the Traffic Commissioner in due course took the action referred to in paragraph 1 above, no representations having been received.

3.           Following further correspondence from the Appellant enclosing evidence of the proposed house sale upon which the Appellant company had stated they relied for finance, the Appellant company appealed, on 24 July 2009, to the Transport Tribunal. However at the hearing of the appeal the Appellant company was neither present nor represented, nor had anyone sent written representations. In the circumstances the Tribunal considered the appeal on the basis of the papers in the file and concluded that there had been more than adequate warning of the consequences unless financial standing was shown and every opportunity for the Appellant company to make representations or to request a public inquiry. We observed that the Traffic Commissioner had been exceptionally patient and entirely correct in his procedures but had apparently not received any cooperation from the Appellant, at least in keeping his office informed. The appeal is therefore dismissed.

Frances Burton

20 October 2009