Neutral Citation Number: [2009] UKUT 223 (AAC)

Appeal No.  2009/479

IN THE UPPER TRIBUNAL            

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF R. TURFITT

TRAFFIC COMMISSIONER for the

EASTERN TRAFFIC AREA Dated 10 July 2009

Before:

Judge Frances Burton

Patricia Steel

George Inch

Appellant:

JOHN POPPLE T/A J&S POPPLE

Attendances:

For the Appellant: Mr John Popple

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 Eastern Traffic Area dated 10 July 2009 that the Appellant operator’s operator licence had been terminated for non payment of the fee and that there were no exceptional circumstances justifying acceptance of late payment.

2.               The factual background is apparent from the documents, the correspondence on the file and the Decision letter of the Traffic Area Office dated 10 July 2009 and is as follows :

(i)              The Appellant held a restricted operator’s licence authorising 2 vehicles and 0 trailers. The operator was reminded that his annual renewal fee was due by letter from the Office of the Traffic Commissioner dated 7 May 2009. The amount to pay was £20, the fee was due by 31 May 2009 and the letter clearly stated “Failure to reply to this letter and to return your licence fee by 31 May 2009 will result in the termination of your operator’s licence”. This deadline was repeated in no less than 3 places in the letter which added “No reminder will be sent”. The letter was sent to the operator’s address on file.

(ii)             On 15 June 2009 the Traffic Area Office wrote again referring to their previous correspondence, pointing out that they had made clear the consequences of non payment by the deadline, stating that the licence had now expired automatically under the provisions of s 45(4) of the Goods Vehicle (Licensing of Operators) Act 1995 and that if the operator wished to continue to operate he must apply for a new licence. On 19 June 2009 the operator emailed the Traffic Area Office to say that he had received no reminder and requesting acceptance of late payment as he had had other mail go astray. He stated that he would most certainly not have put his business’ licence in jeopardy for the sake of non-payment of £20.

(iii)            The matter was referred to the Traffic Commissioner on the basis that the operator’s explanation for non payment could not constitute “exceptional circumstances” as the onus is on the operator to know when his licence is due for renewal. The Traffic Commissioner confirmed this view of the circumstances and determined that late payment should not be accepted. The Appellant applied for a stay of the decision pending appeal which was allowed.

3.           At the hearing of the appeal the Appellant attended personally. He told us that he had not thought it necessary to go into personal matters when applying for late payment to be accepted as he had done so such a short time after expiry of the payment deadline at a time of stress as his mother was ill in hospital. He felt it unfair that his late fee had not been accepted. He had always paid on time and had always previously had reminders which raised a legitimate expectation that this would always be the case. On this occasion he had received nothing.

4.           We pointed out to the Appellant that it is an operator’s responsibility to pay his licence fees. His licence had terminated automatically as he had not paid the fees, but as he had not had it revoked he could reapply for a new one and there was no reason to suppose he would not receive one. Moreover as the stay granted pending appeal would remain in place until he received our written decision he would have time to get a new application in and an interim licence issued before the stay expired.

5.           The Appellant had not apparently appreciated that the Traffic Area Office is in fact under no obligation to send reminders and that truly exceptional circumstances must be found before s 45(4) could be disregarded and its automatic action overturned. We pointed to the case of 2008/569 David Collingwood in which it was stated “There is no provision for reminders in the Act and the statutory position is clear: if a fee is not paid by the prescribed time the licence terminates”. That decision goes on to say that earlier cases might have been dealt with unduly leniently.

6.           Accordingly we conclude that the Appellant did not perform his obligation to renew on time although it is clearly stated in the Collingwood decision that “It is for the licence holder to comply with this requirement”. We therefore dismiss the appeal.

Frances Burton

20 October 2009