Neutral Citation Number: [2010] UKUT 104 (AAC)

Appeal No. T/2009/526

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 22 November 2009

Before:

Frances Burton, Judge of the Upper Tribunal

George Inch, Member of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

Appellant:

DAVIS ROOFING LIMITED

Attendances:

For the Appellant: No appearance: request to be heard in absence

Heard at: Victory House

Date of hearing: 10 March 2010

Date of decision: 7 April 2010

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 Western Traffic Area dated 22 November 2009, when the Traffic Commissioner in Chambers considered the Appellant Company’s application for a Restricted Goods Vehicle Operator’s Licence and refused the application because the wording on the prescribed advertisement did not contain the required wording and was therefore unacceptable as it was considered to be misleading to residents. The application was refused under s.11(2) of the Goods Vehicle (Licensing of Operators) Act 1995 and the Appellant notified by letter from the Traffic Area Office on 23 November 2009.

2.           The factual background appears from the documents, the Traffic Commissioner’s written note recording her refusal, and the Decision letter sent by the Traffic Area Office and is as follows.

(i)               The Appellant Company’s application was initially received on 24 August 2009 and at that time was accompanied only by a maintenance agreement. When the application was processed on 14 September 2009 a letter was sent to the Applicant the same day requesting further information. However at that time the Applicant was already too late to advertise within the required 21 day period and following a conversation with the Appellant Company on 28 September 2009 the application was re-registered to enable the Appellant Company to advertise within the required period. On 5 October 2009 the Appellant Company sent in the additional information requested (the published advertisement, their certificate of incorporation, amended maintenance agreement and copy bank statements). On 23 October 2009 a check of the application by the team leader revealed that the wording of the advertisement was incorrect although it had appeared in a suitable newspaper on an acceptable date. The application was therefore referred to the Traffic Commissioner.

(ii)              On 22 October 2009 the Traffic Commissioner considered the file and refused the application, which she endorsed “it is for the Applicant to ensure the criteria are met and the legislation does not permit additional time to advertise where the original advert is not as prescribed”. The Traffic Area office notified the Appellant Company of the decision on the following day.

(iii)            The Appellant Company appealed to the Upper Tribunal of the Tribunals Service (Administrative Appeals Chamber – Transport) on 10 December 2009 stating that the “examples provided by the Department of Transport were emailed” to the local newspaper when the advertisement was placed, and that (although the advertisement had omitted some wording) it had still given “details of where to make written representations should objections be made”. The Appellant Company had added that they were “positioned on a very busy trading estate” and “on no occasion” had they “received any complaints during the 12 months since we relocated here”. The Appellant Company’s grounds of appeal were that the sole omission had been of the “time scale of 21 days to lodge complaints not stated in advert” and that they did “not expect any as we are operating from a commercial site”.

3.           At the hearing of the appeal the Appellant Company did not attend and was not represented. Instead a request had been received by the clerk for the appeal to be considered in the Appellant Company’s absence. No further written representations were sent.

4.           While the advertisement relied on is largely in the correct format it is clear that it does not include the essential information about the timescale for submitting representations against the grant of a licence for operation from the address set out in the advertisement, nor that anyone complaining should send a copy of the representations to the Applicant, nor that a Guide was available from the Traffic Area Office. The Traffic Commissioner’s Office had clearly considered the advertisement potentially misleading as a local resident could therefore have attempted to make a representation outside the 21 day period allowed.

5.           While the Traffic Area Office might have dealt with the matter more quickly on the initial application and made it clearer to the Appellant Company when the application was re-registered that it was essential that the sample wording provided for advertisement had to be adhered to, the Traffic Commissioner is not plainly wrong. The Appellant Company should simply reapply, this time taking care to adhere to the precise requirement.

Frances Burton

Judge of the Upper Tribunal

7 April 2010