Neutral Citation Number: [2009] UKUT 275 (AAC)

Appeal No.  2009/498

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 October 2009

Before:

Judge Frances Burton

Leslie Milliken

David Yeomans

Appellant:

G. SUNDERLAND and J. WARBURTON

Attendances:

For the Appellant:  Robert Locke, Solicitor

Heard at:                       Victory House

Date of hearing:           13 November 2009

Date of decision:         11 December 2009

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED.

REASONS FOR DECISION

1.           This was an appeal against the Decision of the Traffic Commissioner for the Western Traffic Area dated 13 October 2009 when she disqualified the Appellants from holding an operator’s licence or from being an officer of a company holding an operator licence indefinitely in any traffic area on the grounds that both were Directors of the Operator company Ground Restoration Ltd from 4 January 1993 to 31 March 2008 and during that period were responsible for that Operator’s licensing compliance, and following the sale of the company on 31 March 2008 were consultants until December 2008. The Traffic Commissioner took this action as immediately upon taking over in January 2009, the director designate, and his colleagues recognised that there were serious failings in the Operator company’s licensing compliance systems.

2.           The factual background appears from the documents, the transcript of the public inquiry to which Ground Restoration Limited was called at Bristol where it took place on 3 August 2009, although the Appellants did not attend, and is as follows.

(i)               Ground Restoration Limited held a restricted operator’s licence authorising 8 vehicles. As a result of evidence given at the hearing the Traffic Commissioner found breaches of s. 26(1)(b), s.26(1)(c), 26(1)(e), s.26(1)(f) and s.26(1)(h) of the Goods Vehicle (Licensing of Operators) Act 1995 and was at first clearly minded to revoke the operator company’s licence. However, after a short adjournment in giving an oral decision she drew back from revocation of the operator’s licence as the Appellants were no longer Directors, and instead curtailed the licence to 6 vehicles with immediate effect, but disqualified the 2 former Directors because the evidence had shown that the operator “had not been compliant with its operator licensing regime for years”. She added that “Mr Sunderland and Mr Warburton had “shown an unacceptable disregard for road safety and fair competition. They have put other people’s lives at risk for the benefit of profit”. She offered to set out her full thoughts about them and their regime in writing, which she did on 13 October 2009.

(ii)              The two Directors appealed against their disqualification on the grounds that although at first the Traffic Commissioner indicated that she would revoke the licence she ultimately did not do so but had merely curtailed the fleet.

3.           At the hearing of the appeal the Appellants were represented by Mr Robert Locke, Solicitor, whose “unperfected” grounds of appeal had been directed towards challenging the merits of the Traffic Commissioner’s disqualification. However by the time of the hearing he had amended them apparently upon noticing that the Traffic Commissioner had not, ultimately, revoked the licence of Ground Restoration Limited. He drew our attention to the terms of s.28 of the Goods Vehicle (Licensing of Operators) Act 1995 whereby revocation is a condition precedent to disqualification and submitted that while revocation was clearly contemplated and is evident on the transcript, in the end, after the brief adjournment, the Traffic Commissioner had merely curtailed the fleet from 8 to 6 vehicles from 3 August 2009 to 26 October 2009. Consequently he submitted that disqualification of Mr Sunderland and Mr Warburton, the former Directors of Ground Restoration Limited, was not only unreasonable and unjustified, in that it was not by way of regulatory action but punishment, but “ultra vires in any event”.

4.           We accepted Mr Locke’s amended grounds of appeal and his argument in relation to the Traffic Commissioner’s powers of disqualification of the directors of an operator company: the wording of s 28 provides for disqualification only following actual revocation of an operator licence and is not available following other regulatory action, even where a Traffic Commissioner considers that disqualification is appropriate and proportionate for matters relating to such directors’ repute in connection with a non-compliant licence for which they had responsibility. While the Appellants’ history may still be taken into account in relation to any other operator licence with which they might be connected, in the present case the appeal must be allowed. 

 Judge Frances Burton

11 December 2009