Neutral Citation Number: [2009] UKUT 274 (AAC)

Appeal No.  2009/497

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 7 August 2009

Before:

Judge Frances Burton

Leslie Milliken

David Yeomans

Appellant:

THORPE LANE COMMERCIALS LIMITED

Attendances:

For the Appellant:  Gary Appleyard

Heard at:                       Victory House

Date of hearing:           13 November 2009

Date of decision:         9 December 2009

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED and remitted to the Traffic Commissioner for his further consideration.

REASONS FOR DECISION

1.           This was an appeal from the Decision of the Traffic Commissioner for the North Eastern Traffic Area dated 7 August 2009 when he revoked the Appellant Company’s operator’s licence under s.26(1)(h) of the Goods Vehicle (Licensing of Operators) Act 1995 (material change).

2.           The factual background appears from the documents and the Decision letter from the Traffic Area Office dated 7 August 2009 and is as follows.

(i)               On 4 November 2008 Senior Vehicle Examiner M.A. Millard wrote to the Secretary of the Operator Company detailing the results of the maintenance inspection conducted at the Company’s operating centre on 29 October 2008 in which the following deficiencies were noted: “(1) Drivers do not conduct daily walk around pre use checks, (2) Drivers daily walk round checks appear ineffective, and (3) No written driver defect reporting system is in operation”. The Operator was given 14 days to respond with a written explanation and assurances that measures would be taken to prevent recurrence, failure to respond appropriately being clearly stated as likely to lead to a reference to the Traffic Commissioner for disciplinary action. On 17 November Mr Millard wrote again giving a further 7 days for response failing which the matter was to be referred to the Traffic Commissioner.

(ii)              On 8 January 2009 Mr Millard sent a further letter, giving the operator a final 7 days to respond. On 14 May 2009 the Office of the Traffic Commissioner wrote to the operator notifying the Traffic Commissioner’s intention to revoke the licence since no replies had been received to previous correspondence but pointing out that, if requested, the Traffic Commissioner would consider the matter at a public inquiry, provided such a request was received by 28 May 2009. Following receipt of the letter of 7 August 2009, actually revoking the licence, Mr Gary Appleyard wrote back on 16 August 2009, enclosing a copy of his letter of 20 May 2009, which set out the steps which he had taken to address the issues raised by VOSA, adding that the operator had had 4 roadside inspections and there had never been anything wrong with the vehicles at these inspections. He requested the Office of the Traffic Commissioner to contact him if they wished to discuss anything and to “arrange a visit to look at our new systems”. On 11 September 2009 the Traffic Area Office stated that there was no evidence that this letter of 20 May was ever received by them.

3.           At the hearing of the appeal Mr Gary Appleyard attended personally. The hearing had originally been listed for 5 November 2009 in London.  En route to the hearing Mr Appleyard’s car was broken into and his briefcase containing his papers had been stolen. As a result the case had been adjourned for a week to enable him to bring copies of some papers which it had contained.

4.           He said that he had not received the letter of 7 August 2009 which had obviously required a signature and he had not received any previous letters.  He explained that his operating centre was located at an address which served both a shop and a yard, and where unregistered post was delivered to his brother who did not pass his on to him. This was because, since the death of their mother, there had been a dispute between them. As a result for a period he had only received registered or recorded delivery letter which had to be signed for. He had noticed some post (for example cheques) going astray.

5.           Mr Appleyard said that he had received the letter of 14 May 2009 and had replied on 20 May. At the maintenance inspection he could not show actual use of a defect book.  The reason for this was that he had only owned the vehicle for two weeks and it had never been used on the road, therefore no use of a defect book was required. He had now lost his previous vehicle’s papers as they had been in the stolen briefcase. It had been a further problem that at the inspection on 29 October 2008 the VOSA inspector had said he could only look at the documentation of the vehicle present at that time, and not that associated with his old vehicle. However he assured us all this paperwork had been in order and that everything continued to be in order.

6.           We asked Mr Appleyard where the Traffic Commissioner had gone wrong, given that the Traffic Area Office had had no knowledge of postal problems at the Operating Centre. Mr Appleyard replied that the clear roadside inspections spoke for themselves to support his case that he was doing all he ought and if he had known the Traffic Commissioner wanted to communicate with him he would have gone round personally to the office which was only 5-10 minutes from his operating centre.

7.           We were impressed with Mr Appleyard who, in 1 week had made 2 journeys to the Tribunal from Leeds, and who appeared to be thoroughly straightforward and anxious to show compliance. We told him we thought he should be alert to lost post, given his experience of non-receipt of letters on both sides in the 2008/9 correspondence with the Traffic Commissioner, and if his operating centre was so close to the Traffic Area Office he might in future consider hand delivery. We consider that justice would be best served if we allow the appeal and remit his case to the Traffic Commissioner for further consideration, prior to which he should write in to the Traffic Area Office to bring them up to date, setting out the problems with postal deliveries, the loss of his briefcase and records (all accepted by the Transport Tribunal) and highlighting that he had had a new vehicle, not yet on the road at the time of the VOSA visit on 29 October 2008.

8.           Accordingly we allow the appeal and remit the case to the Traffic Commissioner for his further consideration.

 Judge Frances Burton

9 December 2009