Neutral Citation Number: [2010] UKUT 145 (AAC)

Appeal No. T/2009/527

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL FROM THE DECISION OF

JOAN AITKIN, TRAFFIC COMMISSIONER for the

SCOTTISH TRAFFIC AREA Dated 9 DECEMBER 2009

 

 

 

Before:

Her Hon. Judge J Beech, Judge of the Upper Tribunal

Stuart James

John Robinson

 

Appellant:

 

LISA RAFFERTY trading as 1^st CLASS LIMOS

 

 

Attendances:

For the Appellant: Mark Laprell of Counsel instructed by Shulmans, solicitors

 

 

Heard at: The Eagle Building, 215 Bothwell Street, Glasgow, G2 7EZ

Date of hearing: 25 March 2010

Date of decision: 9 April 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the appeal be DISMISSED.

 

 

 

 

 

 

 

 

REASONS FOR DECISION

 

1.               This was an appeal from the decision of the Traffic Commissioner for the Scottish Traffic Area made 9 December 2009 when she refused the Appellant’s application for a PSV licence under s.14(1)(a) of the Public Passenger Vehicles Act 1981 (“the Act”).

 

2.               The factual background to the appeal appears from the documents, the transcript and the Traffic Commissioner’s written decision and is as follows:

 

(i)              On 13 November 2008, the Appellant made an application for a standard national PSV licence authorising two vehicles under 17 seats (“stretched limousines”) and two single decked “disco” buses. As a result of the delay in processing the application, the number of authorised vehicles requested increased to nine to include another bus and four stretched limousines.

 

(ii)             Included in the financial information submitted to show financial standing was a set of accounts for the Appellant trading as 1^st Class Limos showing substantial and increasing turnovers for years ending 2007 and 2008.

 

(iii)            On 19 May 2009, the Appellant wrote to the Central Licensing Unit (“CLU”) referring to an earlier conversation she had had with Ms C Tobin of the CLU and advising:

 

“I operate the business under the name of 1^st class limos as when I originally set up the business I started with two limousines, I have now moved to bus hire, which is hired in the same manner as a limousine ie hourly and each individual person is charged. We pick up from their home address or venue and they are driven by a chauffeur for the hour, hence why I kept the name limos.”

 

(iv)           On 21 July 2009 the CLU wrote to the Appellant informing her that the Traffic Commissioner required her to sign the enclosed limousine undertakings and requesting further information about the licensing arrangements that were in place when the Appellant operated the two limousines to which she had referred in her previous letter. The Appellant signed the undertakings (only part of which appear in the appeal bundle). However, one of the undertakings that the Appellant accepted was that the she must not purport “to operate under specious and irrelevant authority such as reference to schedule 6 or section 6 (which usually refers to construction and use provisions to allow the driving of a vehicle for private use, as opposed to hire or reward), in an effort to circumvent the operator licensing system”. In the letter enclosing the signed undertakings, the Appellant wrote:

 

“When I first started up my business I operated two limousines under a self drive policy therefore I did not supply a chauffeur with them, the customer either drove themselves if the appropriate licence was held and met with my insurance conditions or employed their own chauffeur with the appropriate qualifications...”

 

 

(v)             On 15 September 2009, the CLU wrote to the Appellant’s agent, Ms Howard of OLMC Ltd and informed her that the Traffic Commissioner had decided to consider all regulatory issues arising out of the Appellant’s application at a public inquiry. A formal call up letter dated 29 September 2009 was sent to the Appellant notifying her that the public inquiry was to take place on 9 November 2009. All requirements under s.14(1) of the Act were to be considered and in relation to good repute the Traffic Commissioner would have regard to “any other information as the Commissioner may have as to (the Appellant’s) previous conduct, in whatever capacity, in relation to the operation of vehicles of any description in the course of a business”.

 

(vi)           By a letter dated 29 September 2009, Biggart Baillie LLP requested an earlier date for the public inquiry. They wrote:

 

“As you are aware there is a change to the legislation regulating the operation of limousines which comes into effect on 1 October. This means that unless our client has obtained the appropriate operator’s licence required, then she cannot operate any of her limousines from 1 October. Our client is not only well aware of the legislation (and has been for some considerable time) but she has every intention of complying with its requirements. In fact it was for this very reason that our client ensured that she had applied for the necessary operator’s licence at the end of last year (in anticipation of the legislation coming into force) to ensure that she obtained the necessary operator’s licence in time. Despite this an Inquiry .. shall not take place (until) .. 9 November (some six weeks after the legislation comes into force). This effectively means that despite our client’s best efforts and despite the fact our client has been proactive and diligent, she cannot run her business with effect from 1 October until after the outcome of her inquiry. Our client has had to lay off her 20 staff with effect from 1 October until after the outcome of her inquiry as she is unable to operate any of the limousines during that period ..”

 

(vii)          Prior to the public inquiry taking place on 9 November 2009, written submissions and a bundle of documents were submitted by Shulmans solicitors for the Traffic Commissioner’s consideration which included correspondence concerning the considerable delays that had taken place in processing the Appellant’s application; a form headed “Chauffeur Hire Scotland”; terms and conditions for the hire of the Appellant’s vehicles and a Hire Confirmation form. The submissions made reference to the delays in the application being processed; that the following matters “militate conclusively in favour of Miss Rafferty being granted the licence”: her exemplary good character; the fact that she was the holder of a liquor licence; her prompt response to all requests made of her by the CLU; her serious attitude towards regulatory compliance and performance of undertakings; her evident financial standing; that she had applied for Certificates of Initial Fitness (“COIFS”) another bus and an additional four vehicles subject to the initial application and is obtaining others on a rolling basis; her operating systems were in place and she had a suitable transport manager; VOSA did not oppose the application; all drivers were assessed by GTG Training Group to ensure their competency to drive buses and limousines; her willingness to invest in the business evidenced by the installation of a vehicle ramp at a cost of £10,000; her engagement of the services of OLMC Ltd, Transport Consultants.

 

(viii)         At the hearing of the appeal, Miss Rafferty attended the public inquiry along with Mr Boyle her transport manager and she was represented by Mr Conybeare of Shulmans, solicitors.

 

(ix)           At the outset of the hearing, the Traffic Commissioner indicated that it would appear from her brief that the Appellant had been engaged in “serious illegal operation for a number of years, which goes to repute”. The Traffic Commissioner pointed to the Appellant’s trading name, the letter from Biggart Baillie LLP, the Appellant’s accounts, the lack of evidence of a private hire licence, the documents enclosed in the Appellant’s bundle which indicated that the Appellant had been operating limousines under a “dry hiring” arrangement, the recent acquisition of certificates of initial fitness and the absence of evidence confirming that the Appellant held a liquor licence.

 

(x)             Mr Conybeare indicated that the Appellant was in a position to deal with the issue of illegal operation. The Appellant gave her evidence in response to questions put to her by the Traffic Commissioner and Mr Conybeare indicated that he was content with that approach. She had commenced trading as a limousine operator in 2005 using normal limousines with eight seats. In 2007 she had acquired a stretched jeep and some stretched hummers with sixteen seats, none of which had either a COIF or a single vehicle authorisation (“SVA”). At the time, she was not aware that she had needed such safety certifications for the vehicles. She had even had a visit from the police and they had not said anything to her about it. She accepted that her vehicles ought to have been COIF’d: “I know its no excuse .. I should have had it .. all the other limousine companies .. none of us had it”. The vehicles were nevertheless regularly checked and maintained by a “proper limousine mechanic” and they were subjected to daily checks before being taken out on the road.

 

(xi)           She had been operating the stretched limousines on a self-hire basis for parties of up to sixteen passengers. The vehicles were driven by chauffeurs who all had a PCV driving entitlement. Her vehicles had cost up to £80,000 each and she ensured that the drivers were able to drive that type of vehicle by requiring them to undergo a driving assessment by Mr Hammond of GTG Group who would assess the drivers over at least two hire periods. The drivers were however, self employed. The Appellant would take a deposit for the self-hire and the remainder of the cost of the hire and the fee for the chauffeur would be paid to the chauffeur. She hired her vehicles in this way (“dry hiring”) because she did not have any COIFS or SVAs for them. She denied that this was a way of circumventing the requirement of having a PSV licence. She did not introduce the chauffeurs to the customers but she had a “pool of them” and the choice of chauffeur at any given time depended upon who was available. The customers could either provide their own driver or hire one of those already vetted by the Appellant. She denied that she had twenty members of staff as asserted by the letter written by Biggart Baillie LLP. She had a pool of fourteen or fifteen self employed chauffeurs, three cleaners and two receptionists. The hires were normally for one hour. She said “I’m totally aware of what your’e saying about the dry hiring etc .. I want to comply with the operator’s licence, I want to be able to do it right .. I do understand and that is why you have brought this stuff out, I’m trying to comply with it ..” She said that she had been a member of the National Limousine Association since 2005 but they had not provided any real help in solving the problem of operating stretched lilmousines. It was they who had advised to “schedule 6 your vehicle and .. self hire it out, because there’s no other way of complying”. She said “I am very much aware now that it’s not acceptable to self-hire them out, which is why I’ve spent so much money .. getting the COIFS .. at £20,000 a go .. and getting the ramps installed .. because I want to comply. I’m very much aware that that’s (sic) not acceptable to continue to do that”. Later in the hearing a following exchange took place concerning the use of a disco bus:

 

Traffic Commissioner: So its been in use.

The Appellant: Aha.

Traffic Commissioner: What for?

The Appellant: For self-hire.

Traffic Commissioner: You hiring and you phoning up a chauffeur.

The Appellant: If I’m honest, yes. Yes, if I’m completely honest with you”.

 

(xii)          The Appellant stated that until relatively recently it had not been possible to obtain COIFS for stretched limousines (and therefore no PSV licence) and she had not obtained a private hire licence for the vehicles because her local council did not licence limousines. Now that COIFS were available from an engineer in Southampton who had gone to the trouble of remedying the safety deficiencies of stretched limousines by, for example, making his own brake pads and manufacturing his own glass, the Appellant was in a position to start COIF’ing her vehicles at a cost of between £10,000 and £20,000 and to apply for a PSV licence, in the knowledge that “the new laws regarding actual enforcement came into effect in January 2008”. Unlike other operators who were continuing to operate on a “dry hiring arrangement”, she was trying to comply with the law by obtaining COIFS and had been complying in every other respect with the PSV licensing requirements. She operated under various names: 1^st Class Limos; East Coast Hummers; Kingdom Limos and Livi Limos.

 

(xiii)         In answer to questions regarding the liquor licence that the Appellant was said to have had, it transpired that she had passed the necessary examination in order to be able to apply for a licence and had applied to licence her operating centre because she provided free sparkling wine with each hire. She was not however licensed as at the date of the hearing.

 

(xiv)        At the end of the Appellant’s evidence in answer to the Traffic Commissioner’s invitation, Mr Conybeare did not ask any supplemental questions of the Appellant either to clarify any matters which he considered important or to adduce evidence which had not already been put before the Traffic Commissioner. The Traffic Commissioner then heard evidence from Mr Boyle, the Appellant’s transport manager and went into camera to consider financial standing.

 

(xv)          In his closing submissions, Mr Conybeare acknowledged that serious issues had been raised by both the Traffic Commissioner and VOSA in relation to the operation of stretched limousines and that as someone with experience of prosecuting for VOSA he knew that the operation of stretched limousines was an area of particular concern. In the case of the Appellant, she had been honest and truthful in the way that she had answered all the questions put to her. She could have just “packed in this business” but had chosen to make an application and obtain the necessary certificates. He submitted that just because the Appellant’s vehicles were unusual,that did not mean that they could not be operated within the regulatory regime. The Appellant has made enormous efforts and gone to great expense to ensure that her vehicles were in fact legal. She could have risked impounding by continuing to operate as she had before but she was keen to comply and that was to her credit. Mr Coneybeare went through the written submissions (set out in paragraph 2(vii) above) and submitted that whilst the Traffic Commissioner could find that the Appellant was not of good repute as a result of her previous operating history (although he did not consider that such a conclusion was justified), the question of when her good repute would be regained should also be considered. Her past should not hang over her head for ever. She was honest and truthful enough to accept her shortcomings and had not attempted to deceive the Traffic Commissioner. She had a good and compliant business and she would be prepared to comply with any undertakings required of her.

 

(xvi)        In her written decision dated 9 December 2009, the Traffic Commissioner rehearsed the relevant legislation and in particular s.12 of the Act which provides that a PSV vehicle (which is a motor vehicle other than a tramcar, adapted to carry more than eight passengers and used for hire or reward or not being so adapted, is used for carrying passengers for hire or reward at separate fares in the course of a business of carrying passengers) shall not be used on a road unless it is operated under a PSV licence. The “new law” which had prompted applications from limousine operators for operator’s licences simply conferred upon VOSA the power to detain and dispose of PSV vehicles which were being operated without a PSV licence (s.12(A) of the Act as inserted by s.47(1) of the Local Transport Act 2008). The law relating to the operation of stretched limousines had not changed. The financial evidence before the Traffic Commissioner indicated significant operating of limousines under various trading names. The vehicles used in the Appellant’s operation did not have COIFS or SVAs and the Appellant knew that this was a requirement. The Traffic Commissioner based this finding upon the fact that the Appellant had been “dry hiring” her vehicles because she knew that she could not operate her vehicles legally. The Traffic Commissioner concluded that the “dry hiring” was a pretence and in doing so, she adopted a description of the practice set out in a decision of the Traffic Commissioner for Wales (Go Stretch Limited decided on 4.11.08):

 

“Dry hiring is a ruse which has on occasion been attempted by some illegal operators whereby they claim that they are not operating a vehicle as they hire it out, in the same way that any ordinary car hire company does so .. For the avoidance of doubt, one can hire large goods vehicles to move one’s own property when moving house, assuming one has an appropriate driving licence. Similarly, it is theoretically possible to hire a passenger carrying vehicle without the requirements for an Operator’s licence and under certain limited circumstances a hire arrangement may not be illegal. However, it is clear that a business which runs limousines on the basis of hiring out vehicles with the suggestion that the hirer is the operator, is a fiction which does not stand up to even cursory scrutiny”.

 

The Traffic Commissioner was in no doubt that the Appellant’s hire and chauffeuring arrangements were a “ruse” to get around the requirements of the Act. The Appellant controlled the pool of chauffeurs and made all of the introductions. These were her “staff” whom it was asserted by Biggart Baillie LLP had been “laid off”. Anyone hiring one of the Appellant’s vehicles got one of her chauffeurs and the paperwork could not obscure that the purpose was to run illegal vehicles without a PSV licence. The handing over of cash to the chauffeur was immaterial to the true nature of the transaction.

 

(xvii)       The Traffic Commissioner found that contrary to submissions made on behalf of the Appellant, she had been serving alcohol in the course of her business without holding a liquor licence for that purpose, although the Traffic Commissioner did not make any adverse findings in relation to this. The Traffic Commissioner considered that the only matter in issue was good repute as a result of “substantial commercial unlawful operating” which continued well beyond the application for a licence and only stopped on 1 October 2009 when the impounding provisions came into force. Such unlawful operation was in defiance of legislation and regulations the purpose of which was to ensure the safety of passengers and the public.

 

(xviii)      Whilst the Traffic Commissioner had been urged to disregard the Appellant’s past and welcome her into the regulatory system as a reformed character who could be trusted, this was not a case where this could take place because of the lengthy course of illegal operation, the significant expansion of the Appellant’s business in 2008 and her continued operation after the application for a licence had been submitted. The Traffic Commissioner found that the reason for this continuing course of conduct was that the business was extremely lucrative.

 

(xix)        Having reminded herself that one of the aspects of her jurisdiction was fair competition as well as road safety, the Traffic Commissioner was mindful that other reputable people will have desisted from operating stretch limousines knowing that there was no COIF available for them and had thereby forgone the opportunity of income. The Appellant was able to put her vehicles through the COIF procedures and invest in her premises because she had accrued a good income from the unlawful operation. She had therefore obtained an advantage over those who respect safety and the law. In the circumstances, the Appellant was not of good repute.

 

3.     At the hearing of this appeal, the Appellant was represented by Mark Laprell of Counsel who provided us with a skeleton argument for which we were grateful. By way of introduction, he informed the Tribunal that the operation of limousines had been until recently and by necessity, outside of either the PSV licensing system or the private hire licensing system by reason of the unavailability of COIFS. As a result, all limousine operators have been operating upon the basis of “dry hiring”. He submitted that in some cases, those arrangements were a fiction and in some cases they were genuine because the owner of the vehicles had ensured that there was sufficient distance between them and the drivers so that it could not be said that the owner of the vehicles was in control of the drivers’ activities. This “ruse” was not as a result of a desire to operate unlawfully. A “ruse” could be lawful or unlawful and Mr Laprell used the analogy of the distinction between tax avoidance and tax evasion, one being legal, the other not. The Traffic Commissioner failed to state that the “ruse” in this instance was unlawful.

 

4.     Neither was the “ruse” a matter which had been mentioned in the call up letter despite the fact that part of the evidence upon which the Traffic Commissioner made her finding was the Appellant’s accounts which had been submitted shortly after the application for a licence had been submitted. Whilst the Appellant was legally represented and that an adjournment could have been requested for the Appellant to be able to deal with the issue of unlawful operation, Mr Conybeare was in a difficult position. A considerable period of delay had already occurred and a request for an adjournment would have added to that delay which would have been to the detriment of the Appellant.

 

5.     In any event, the Traffic Commissioner had not made the requisite findings of fact in order to properly conclude that the dry hiring was unlawful in this instance having failed to ask the right questions and then failed to undertake a sufficient analysis of the Appellant’s control of the drivers during the (hour long) periods of hire. It was insufficient that the Appellant had a list of suggested drivers for her customers to use or that she had vetted those drivers for qualifications making them acceptable as drivers of her vehicles. Perhaps because of this lack of analysis, the Traffic Commissioner had failed to make any clear finding as to who was the “user” of the vehicles during the periods of hire? In the absence of a finding of deliberate unlawful activity, the Appellant’s business operations between 2005 and 2009 could not go to her repute.

 

6.     Unlike other limousine operators who have now applied for and/or have been granted PSV licences to cover their operations, the Appellant was frank and honest about her previous operations from the outset. Her openness with the Traffic Commissioner had in fact acted to her detriment and she had been penalised because there were other operators, for example, Clyde Valley Limousines, who had operated vehicles in exactly the same fashion as the Appellant and had since simply reconstituted themselves into a new legal entity namely Clyde Valley Limousines Limited and had then been granted a PSV licence (10 February 2010) despite the Appellant informing VOSA that the officers of the limited company had operated limousines prior to the company being formed. If the Appellant had not disclosed her business accounts and had changed her trading name, the Traffic Commissioner would not have been any the wiser and in all likelihood, she would have been granted a licence. In the circumstances, it was disproportionate to refuse the Appellant a licence whilst granting other limousine operators licences when they were hiding behind a corporate veil.

 

7.     Mr Laprell described the Traffic Commissioner’s reference to her responsibilities to ensure fair competition as being “a fantasy world”. There was no evidence that any potential operator had failed to operate stretched limousines because they were aware that it could not be undertaken legally. Rather than the Appellant having an unfair advantage as a result of years of illegal operation, the opposite was the case. The Traffic Commissioner was in fact failing to carry out her fair competition obligations by refusing to grant a licence to a candid applicant whilst allowing those who hide behind a corporate veil to continue to operate.

 

8.     Mr Laprell was also critical of the Traffic Commissioner’s balancing exercise. She failed to state whether she accepted or rejected the Appellant’s evidence that if she had been able to do so, the Appellant would have applied for a licence earlier. She did not give any credit for: the Appellant having ensured that the pool of drivers offered to customers were qualified and had the appropriate training; her COIF’ing of vehicles as soon as the facility was available; the maintenance system that she already had in place and had been using including the six weekly inspections; and the other systems in place to ensure that she could comply with the PSV licence requirements.

 

9.     Finally, Mr Laprell submitted that there were considerable policy considerations in relation to the licensing of stretch limousine operators. The impounding provisions were made to encourage limousine operators to obtain PSV licences. If those applications were then refused, that defeated the purpose of the regime. The policy issue was whether it was in the public interest to bring into the licensing regime a section of the passenger carrying industry which had traditionally operated outside of the licensing system. In the case of the Appellant, she had been patently honest and frank and it was obvious that she could be trusted to comply with the licensing regime in the future. There could not be a clearer case of an applicant who had established repute having previously operated in a way which was questionable but about which, ultimately, there were no specific adverse findings in terms of dishonesty or unlawfulness. The only thing that was going to change was the passage of time and the Traffic Commissioner failed to apply the Crompton test of assessing the fitness of the Appellant to hold a licence.

 

10. Our starting point is Mr Laprell’s criticism of the call up letter. Whilst it does not state in terms that the Traffic Commissioner was going to consider the question of whether the Appellant had been engaged in the unlawful operation of limousines, it did state in no uncertain terms that the Traffic Commissioner was going to consider “any other information as the Commissioner may have as to (the Appellant’s) previous conduct, in whatever capacity, in relation to the operation of vehicles of any description in the course of a business”. The only capacity in which the Appellant had operated vehicles in the course of a business was as a limousine operator. The Appellant and her legal advisor (who is an experienced road transport solicitor with experience of prosecuting for VOSA) would have been well aware of the issues that were going to be considered by the Traffic Commissioner in that context. We have asked ourselves the question: why did Shulmans produce prior to the public inquiry, the documents which purported to show the Appellant’s “dry hiring” arrangements if it was not to deal with the issue of how she had been operating her limousines? We are satisfied that was the purpose of the disclosure. At the outset of the public inquiry, the Traffic Commissioner made her concerns known and Mr Conybeare did not hesitate in stating that the Appellant could deal with the issue raised. He did not even ask for a moment to take instructions from the Appellant to ascertain whether she was in a position to deal with the allegation of unlawful operation and whether he should seek an adjournment. We reject the explanation given by Mr Laprell for the decision not to ask for an adjournment. Whilst there had been serious and unacceptable delays in the processing of the Appellant’s application, the outcome of the public inquiry was of such importance to her, that a further short delay would have been warranted if the Appellant felt that she was in difficulties. Mr Laprell submitted that if the call up letter had included the specific allegation of unlawful operation, then the Appellant could have produced at the hearing, further documents and witness statements perhaps from drivers to confirm that she did not control them when they were driving her vehicles. Well, that is a matter that Mr Conybeare would have considered at the point when he determined that the Appellant was able to deal the issues raised. In the circumstances we are satisfied that there is nothing in this point.

 

11. Turning to the Traffic Commissioner’s findings that the Appellant’s previous limousine operations had been unlawful, we are satisfied that they are made out, that the Traffic Commissioner’s reasoning was not deficient either in setting out the basis for her findings or in making it clear that she found that the Appellant’s operations were unlawful and that there was ample evidence to base a finding that the Appellant was well aware of the position whilst she was operating. The letter of Biggart Baillie made it clear that the Appellant was well aware of the legislation relating to PSV operation and had been for some considerable time. In her evidence to the Traffic Commissioner the Appellant accepted that she knew that her vehicles needed to be COIF’d when she was operating them. Her initial evidence upon her purported “dry hiring” arrangements could not withstand close scrutiny and towards the end of her evidence, the Appellant accepted that she arranged for the chauffeurs to drive the vehicles. In any event, the hire form produced in support of her initial position is simply headed “hire form”. There is no provision on the form for the hirer to provide details of the driver that they intended to use (if not provided by the Appellant) and one of the terms set out on the form provided that all outstanding monies were to be paid to the chauffeur, who, if “dry hiring” was taking place may not be known to the Appellant at all. The form headed “Chauffeur Hire Scotland” gives no registered or contact details for the agency (if that is what it is supposed to be). The only address to be found upon the form is that of the Appellant’s operating centre. The reference in the letter of Baggart Baillie to “20 members of staff” is a clear reference to the chauffeurs used to drive the Appellant’s vehicles. The contention that the Appellant was “dry hiring” her limousines stretches credibility beyond breaking point. Even the possibility of her doing so can be discounted and when coming to this conclusion, the Tribunal has drawn upon its extensive knowledge and experience of commercial vehicle operation. We are satisfied that the description of the Appellant’s operation set out in her letter of 19 May 2009 (see paragraph 2(iii) above) is more likely to be accurate: We pick up from their home address or venue and they are driven by a chauffeur for the hour .. ” (our emphasis) with, we note, the provision of sparkling wine as part of the hire. This is not a feature that is normally found in self-hire arrangements. The Traffic Commissioner’s reasoning cannot be faulted. It is clear and unambiguous. She made a clear finding that the Appellant knowingly operated limousines when it was unlawful to do so and that conclusion is clearly correct.

 

12. As for the Traffic Commissioner’s balancing exercise, she listed all of the positive aspects of the Appellant’s application and accepted them but nevertheless found that the Appellant’s history was so serious that it could not be ignored in relation to good repute. We cannot find fault with that reasoning. The Traffic Commissioner placed considerable weight upon the Appellant’s continuing unlawful operation even after an application for a licence had been submitted and that outweighed the Appellant’s presentation at the hearing and the positive indications that she would be a compliant operator if she were granted a PSV licence. Mr Laprell submitted that all that could change in the Appellant’s case was the passage of time between her conduct (which we find struck at the heart of the regulatory system) and an eventual finding of good repute. But that is often the position when considering conduct of this seriousness. The Traffic Commissioner was not satisfied that sufficient time had passed and we do not consider that such a determination was either plainly wrong or disproportionate. It will be for those advising the Appellant to determine when a fresh application should be submitted.

 

13. Mr Laprell “poured scorn” on the Traffic Commissioner’s reference to her jurisdiction being one of fair competition, describing it as a “fantasy world”. We fundamentally disagree with this submission. The purpose of the regulatory regime is two fold: fair competition and road safety. The Traffic Commissioner was entitled to take account of the fact that the Appellant was in a position to now spend considerable amounts of money upon each vehicle in her fleet so that they could be COIF’d as a result of a substantial period of unlawful operation, placing her in an advantageous position over those operators who had drawn back from operating limousines as part of their businesses because it would have been unlawful to do so.

 

14. Be that as it may, Mr Laprell made reference to Clyde Valley Limousines Limited having been granted a PSV licence despite having a background (through its officers) of unlawful limousine operation. Whilst we cannot compare the positions of the Appellant and Clyde Valley Limousines Limited because each case rests upon its own facts, if it is the case that a licence has been granted to that limited company when the Traffic Commissioner was aware of there being in the background a similar history to that of the Appellant, then the approach between the two applications may be considered to be disproportionate. We cannot comment any further upon that point; that will be a matter for the Traffic Commissioner to consider (if she has not already done so). In the medium to long term, it must be advantageous for operators of limousines to be regulated within the licensing system despite their previous histories but each case rests upon its own facts.

 

15. In the circumstances, this appeal is dismissed.

 

 

 

Her Honour Judge Beech

9 April 2010