Neutral Citation Number: [2009] UKUT 251(AAC)

Appeal No.  2009/488

IN THE UPPER TRIBUNAL                   

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF

Sarah Bell Traffic Commissioner for the

Western Traffic Area dated 13 July 2009

Before:

His Hon. Michael Brodrick

David Yeomans

Stuart James

Appellant:

D&A LAWRENCE t/a THE ROSEGLEN HOTEL

Attendances:

For the Appellant: Mr. & Mrs Lawrence appeared in person.

Heard at:                        Victory House

Date of hearing:              5 November 2009

Date of decision:             16 November 2009

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED, but that the order revoking the licence shall not come into effect until 2359 on 17 December 2009

REASONS FOR DECISION

1.               This is an appeal from the decision of the Traffic Commissioner for the Western Traffic Area to revoke the Public Service Vehicle Operator’s licence held by the Appellant because of a material change in circumstances.

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

3.               Mr. and Mrs Lawrence run The Roseglen Hotel, Shanklin, Isle of Wight.  They held a Restricted Public Service Vehicle licence, which authorised the use of one vehicle.  This was used to transport guests as part of the hotel business.

4.               In late 2008 or early 2009 a Vehicle Examiner visited the garage at which the vehicle was maintained.  He was able to see records which he considered to be unsatisfactory.  He visited the Hotel where he found that Mr. and Mrs Lawrence were away on a long term holiday. He also found the vehicle was parked, long term, at the roadside.  When Mr. and Mrs Lawrence returned from holiday the Vehicle Examiner sent an inspection request letter by registered post.  The Appellant failed to attend on the date specified.  Subsequently it would appear that further shortcomings were revealed when an inspection took place at the operating centre on 2 March 2009.  They were set out in detail in a letter dated 10 March 2009, which was later produced on behalf of the Appellant.  That letter gave the Appellant 14 days in which to provide a written explanation, after which VOSA indicated that it would have to consider referring the matter to the Traffic Commissioner.  Despite this warning no response was received.

5.               The Traffic Area Office sent letters about the shortcomings which had been revealed on 10 March 2009 and 25 March 2009.  By 19 May 2009 no written response had been received from the Appellant.  The Traffic Commissioner agreed with the recommendation that a letter should be sent warning the Appellant that the Traffic Commissioner was minded to revoke the licence.

6.               That letter was sent on 5 June 2009.  It pointed out that following the failure to respond to various letters “the Traffic Commissioner can only conclude that there has been a material change in your circumstances”.  The letter went on to point out that in that situation the Traffic Commissioner had the power to revoke the licence.  The Appellant was informed of the right to ask for a Public Inquiry but the letter pointed out that unless a request for a Public Inquiry was received by 26 June 2009 the Traffic Commissioner was minded to revoke the licence.

7.               The Appellant failed to respond to this letter and, as a result, the Traffic Commissioner revoked the licence on 13 July 2009.  On the same day a letter was sent to the Appellant stating that the licence had been revoked.

8.               On 3 August 2009 Mrs Lawrence wrote to the Traffic Area Office indicating a wish to appeal and explaining that the Appellant was in discussion with Southern Vectis who were addressing all the points arising out of the inspection.  The Traffic Area Office replied the following day by providing the explanatory leaflet concerning appeals.

9.               Mr. and Mrs Lawrence attended the hearing of the appeal to represent the Appellant.  They produced a small bundle of documents covering the steps taken since the revocation of the licence to remedy the shortcomings found in March 2009.  We were obliged to point out that we are not permitted to take into account ‘any circumstances which did not exist at the time of the determination’ [see Paragraph 9(2) of Schedule 4 to the Transport Act 1985].  Mr. and Mrs Lawrence went on to explain that the vehicle was important to their business because it was used to take guests to and from the mainland.  They said that it was not unusual for those running hotels to take holidays in the quiet period in the middle of the winter but that when they returned early in 2009 they were very busy with the result that matters of administration were neglected.  They accepted that their systems were not adequate and that they needed to do a lot more.  They accepted that they had received the letters referred to above and that they had not responded.  They urged the Tribunal to allow the appeal on the basis that they had now learnt their lesson.

10.            It is quite impossible for Traffic Area Offices to keep a constant eye on each and every operator.  Instead Traffic Commissioners must be able to trust operators to operate in accordance with the regulatory regime.  One aspect of that relationship of trust is the obligation to respond, promptly, to all reasonable letters or requests sent by the Traffic Area Office or VOSA.  Failure to respond inevitably arouses the suspicion that there has been an unauthorised change of operating centre or an un-notified change in correspondence address, with the result that both the Traffic Area Office and VOSA become unable to play their part in the regulatory regime.  It follows that failure to answer letters, especially persistent failure to answer letters is a serious matter.  Sadly this is a case of persistent failure over several months.

11.            We have to consider whether, in the light of the points made by Mr. and Mrs Lawrence, the Traffic Commissioner was plainly wrong to revoke this licence.  In our judgment in the light of the total failure to respond to letters from the Traffic Area Office and from VOSA revocation was the only option open to the Traffic Commissioner.  Her decision was correct and the appeal must be dismissed.

12.            The dismissal of the appeal means that the Appellant must now apply for a fresh licence.  We were told that the decision of the Traffic Commissioner was stayed, which means that the Appellant has been able to operate in the interim.  To enable time for an application for a new licence we direct that the revocation of the licence will not take effect until 2359 on 17 December 2009.

13.            We urged Mr. and Mrs Lawrence to talk to VOSA about the obligations involved in the kind of operation which they want to pursue or to see if VOSA can provide the names of Transport Consultants, who would be able to assist in this way and, perhaps, to assist with the preparation and presentation of a fresh application.

Michael Brodrick

His Hon. Michael Brodrick

16 November 2009