Neutral Citation Number: [2009] UKUT 250(AAC)

Appeal No. 2009/487

IN THE UPPER TRIBUNAL                   

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF

Brigadier TM McCartney Traffic Commissioner for the

North Eastern Traffic Area dated 7 August 2009

Before:

His Hon. Michael Brodrick

David Yeomans

Stuart James

Appellant:

S & A BRUFORD TRANSPORT

Attendances:

For the Appellant: The Appellants did not attend but invited the Tribunal to decide the appeal in their absence

Heard at:                        Victory House

Date of hearing:              5 November 2009

Date of decision:             26 November 2009

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be dismissed with immediate effect.

REASONS FOR DECISION

1.               This is an appeal from the decision of the Traffic Commissioner for the North Eastern Traffic Area to revoke the Goods Vehicle Operator’s licence held by the Appellant on a number of different grounds.

2.               The factual background to the appeal appears from the documents and the Traffic Commissioner’s decision letter and it is summarised below.

3.               The Appellants, a partnership, held a Goods Vehicle Operator’s licence which authorised 11 vehicles and 7 trailers.  However at the time of the revocation the Appellants were only operating 4 vehicles and they had no need for trailers.

4.               On 24 November 2008 a Vehicle Examiner visited the operating centre and attempted to make an appointment to carry out a maintenance investigation but was unable to do so.  Thereafter a Traffic Examiner  also attempted to make contact but he too was unsuccessful.

5.               On 27 May 2009 the Traffic Area Office wrote to the Appellants to warn them that the Traffic Commissioner was proposing to revoke the licence on the grounds that statements of intent and/or undertakings had not been fulfilled and that the Appellants had lost their good repute and/or ceased to be professionally competent.  The Appellants were told that, if requested to do so by no later than 10 June 2009, the Traffic Commissioner would consider the matter at a Public Inquiry.  They were also told that any future changes to the details supplied to the Traffic Area Office had to be notified within 28 days of any change, in order to avoid the possibility of regulatory action.

6.               The Appellants did not request a Public Inquiry nor did they respond in any other way to the Traffic Area Office.  Accordingly the Traffic Area Office wrote to the Appellants, on 7 August 2009, to inform them that the licence had been revoked on all the grounds set out in the preceding paragraph.

7.               On 8 August the Appellants wrote to the Transport Tribunal indicating a wish to appeal against the revocation of the licence.  The letter was signed by Mr. and Mrs Bruford, the partners in the Appellants business.  They explained that having received the letter of 27 May 2009 they made immediate contact with Paul Morrow, a traffic officer and that they were aware that Paul Morrow had make inquiries of Hoddy’s Recovery to establish that they were still operating and had been told that they were and that they undertook the vehicle maintenance and regular checks.  The letter went on to explain that the Appellants were not working from their offices because the roof had fallen in, after heavy rain, rendering the office unsafe, that the repairs carried out by the Landlord had not been effective and had made the central heating system unusable.  The Appellants explained that they were still operating from the warehouse and from a temporary PortaCabin in the warehouse.  They said that Paul Morrow had told them that he would speak to the Traffic Commissioner to explain the position and that he advised them to write to the Traffic Commissioner as well.  They said that they had done so immediately but had not used recorded delivery or registered post.  Finally the letter set out the current maintenance arrangements and the fact that the Appellants would only need 5 licence discs for the 4 vehicles which they were using and one in the margin, with the result that they were prepared to have the licence reduced.

8.               The Traffic Area Office commented on parts of this letter, stating that the Traffic Commissioner had said that Mr. Morrow never spoke to him about the Appellants’ licence.  In addition they stated that no letter had been received from the Appellants.

9.               On 30 October 2009 the Appellants wrote to the Tribunal.  Mr. Bruford explained that he was unwell and unable to travel to London to attend the hearing.  He invited the Tribunal to hear the appeal in the absence of the Appellants.  The letter was countersigned by his wife.  He went on to reiterate that the Appellants’ case was set out in the letter which has been summarised above.  He added that he had never avoided contact with the Ministry.  He said that he felt that he was the victim of a personal attack by a Mr. Wilf Johns, who, he said, had held a grudge against him for a number of years.  He said that although Mr. Johns had other contact details for the Appellants he had made no attempt to use them.  Finally he stated that the business was his only source of income so that if the licence remains revoked he will lose his livelihood.

10.            The task of the Tribunal hearing an appeal from a decision of a Traffic Commissioner is to review the evidence and decide whether or not, on that evidence, the decision of the Traffic Commissioner was ‘plainly wrong’.  It is only in the case of decisions which are plainly wrong that the appeal will be allowed.

11.            In the present case the Appellants accept that they received the letter of 27 May which warned them that the Traffic Commissioner was proposing to revoke the licence.  This type of letter is amongst the most serious that an operator is likely to receive from a Traffic Area Office.  If the operator wishes to remain in business it is essential, following receipt of such a letter, that the operator responds effectively and makes contact with the Traffic Area Office.  Speaking to someone from VOSA may enable an operator to get advice but it is not an effective method of contacting the Traffic Area Office because VOSA and the Traffic Area Office are quite separate and independent organisations.  In the present case the Appellants assert that they wrote to the Traffic Area Office in response to the letter of 27 May 2009.  They have not provided any copy of that letter nor are they in a position to show that it was posted to the Traffic Area Office.  As we have indicated the Traffic Area Office say that such a letter was never received.

12.            The question is: was the Traffic Commissioner plainly wrong to revoke this licence in the absence of any effective response to the letter of 27 May 2009 and in the absence of any contact with the Traffic Area Office?  In our view there can only be one answer to that question, namely that the decision of the Traffic Commissioner was correct, on the basis of the material available to him.  The appeal must therefore be dismissed.

13.            That means that if the Appellants wish to remain in business they must apply for a new licence.  Whether or not they can be granted an interim licence is not for us to say.  If they seek to remain in business they need to discuss the position with the Traffic Area Office and obtain advice as to how to proceed and how to rebuild a relationship of trust with the Traffic Area Office, which is essential to the operator’s licensing regime.  We understand that the decision of the Traffic Commissioner was not stayed.  As a result our provisional view is that the decision should take immediate effect.  However, if within 14 days of the date of this decision we are shown evidence that a fresh application has been made, we are prepared to delay the coming into effect of this decision by a period of 6 weeks.

Michael Brodrick

His Hon. Michael Brodrick

26 November 2009