Neutral Citation Number: [2010] UKUT 152 (AAC)

Appeal No. T/2010/11

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Nick Jones

Traffic Commissioner for the Welsh Traffic Area

Dated 29 January 2010

Before:

His Hon. Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken

David Yeomans

Appellant:

T W WALTON & C WALTON (t/a TW & C WALTON BUILDERS

Attendances:

For the Appellants: both Appellants appeared in person

Heard at: Victory House

Date of hearing: 31 March 2010

Date of decision: 20 April 2010

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

REASONS FOR DECISION

1.           This is an appeal from the decision of the Traffic Commissioner for the Welsh Traffic Area to refuse to disregard the fact that the Appellants’ licence had terminated following non-payment of the continuation fee on the due date. The Traffic Commissioner concluded that there were no exceptional circumstances within s. 45(5) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"].

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

               (i)               The Appellants are the holders of a Restricted Operator’s licence authorising the use of one vehicle.

              (ii)               On 1 December a letter was sent to the Appellants from the Traffic Office at Leeds reminding the Appellants that they needed to pay a fee of £391 by 31 December 2009 in order to keep the licence in force and warning the Appellants, in bold type and in several places, that failure to pay on time would result in the licence terminating. In addition it warned that no further reminder would be sent.

            (iii)               No payment was received and on 15 January 2010 the Traffic Office sent a letter stating that as the deadline had expired and payment was still outstanding the licence had terminated under the provisions of s. 45(4) of the 1995 Act. The letter went on to explain that if the Appellants wished to resume operating they must first apply for a new licence and it added that it was possible to apply for an interim licence.

            (iv)               On 22 January 2010 the Appellants wrote to the Traffic Office, having first telephoned the office. They stated that they had never received the letter of 1^st December 2009 and that they had returned from holiday that morning to find the letter dated 15 January 2010. They stated that they wished to continue to operate and that non-payment was an ‘oversight’ on their part. They added that they had been operating on the licence for over 30 years without any previous failure to meet the requests or requirements of the Traffic Commissioner and that they hoped that it would be possible to ‘rectify this oversight’.

             (v)               The recommendation to the Traffic Commissioner was that there were no exceptional circumstances because the letter of 1^st December was sent to the correct address, after the postal strike had ended and before the bad weather began. In addition it was pointed out that the licence disc would have shown the expiry date and that it is the responsibility of the operator to ensure payment of the fee.

            (vi)               The Traffic Commissioner agreed with that recommendation and refused the application. In addition he agreed with the very sensible suggestion that, in the circumstances of this particular case, an interim licence should be granted upon receipt of a complete and compliant application for a new licence.

           (vii)               The Appellants were informed of this decision by a letter dated 29 January 2010. This letter explained that they had no authority to operate unless and until they had either applied for and been granted authority to do so by the Traffic Commissioner or they had successfully appealed to the Upper Tribunal.

         (viii)               By a letter dated 2 February 2010 the Appellants appealed to the Upper Tribunal. They repeated the explanation that failure to pay was a genuine oversight on their part. They went on to explain the nature of their business and the need to be able to transport equipment on a daily basis. They added that they had been on holiday from 5 January to 22 January 2010 and that they had responded to the letter of 15 January 2010 immediately they returned. They said that their business would struggle to continue if the licence was refused.

3.           At the hearing of the appeal both Appellants appeared in person. They repeated the points which have been summarised above. It was quite apparent from their demeanour that they regretted the fact that they had failed to appreciate the need to pay the licence fee by the end of December 2009 and that their aim was to resume operating in a compliant manner at the earliest opportunity.

4.           We have to consider whether the Traffic Commissioner was plainly wrong to conclude that there were no exceptional circumstances in this case which would enable him to disregard the automatic termination of the licence. In doing so we must bear in mind that the 1995 Act and the Regulations made under that Act make no provision for reminders that licence fees are due. It seems to us that this puts the obligation firmly on the operator to ensure that the fee is paid. There is, of course, a reminder of the date when the licence expires on the licence disc itself and it would be sensible practice for operators to make a diary note in advance of the due date to avoid the problem of non receipt of letters such as that of 1 December 2009. However nothing that we have just said should be taken as any form of encouragement to the Traffic Office to discontinue sending letters in the terms of the letter of 1 December 2009. In the present case the Appellants frankly conceded that they had overlooked the need to pay the licence fee. In our judgment the Traffic Commissioner was fully entitled to conclude that such an oversight did not amount to exceptional circumstances. It follows that the appeal must be dismissed.

5.           When we came to consider the date on which our order should come into effect we were surprised to hear that the Appellants had not been operating, pending the appeal, under a Stay of the Traffic Commissioner’s decision. It appears that the Appellants had been unaware that they could have requested a stay and they had left blank the section in the appeal form which deals with Stays and explains what the word ‘Stay’ means. Instead they told us that they complied with the statement that they had no legal authority to operate until they had authority from the Traffic Commissioner or had successfully appealed. It follows, in our judgment, that our decision must come into effect forthwith and that the Appellants will not be able to resume operating until they have submitted a completed and compliant application for a new licence, (ie not merely must the application be fully completed it must be accompanied by all the necessary documents), and been granted an interim licence. In their own interests they should contact the Traffic Office, as a matter of urgency, if they have not already done so to make quite sure that they know what is required.

6.           In a case such as this, where there are no concerns about road safety or fair competition issues and a history of compliant operation it seems to us that even if the appeal appears hopeless, (as so many appeals of this nature appear to be), it will nevertheless be appropriate to grant a stay in order to ensure that the operator can remain in business. It seems to us that it is better for the operator to learn an important lesson the hard way, by being put to the time trouble and expense of applying for a new licence, that to run the risk of putting an end to the business before any application for a new licence can be determined.

Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals.

* 2010