Neutral Citation Number: [2010] UKUT 154 (AAC)

 

Appeal No. T/2010/008

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Lester Maddrell

Deputy Traffic Commissioner for the Western Traffic Area

Dated 18 December 2010

 

 

 

Before:

His Hon. Michael Brodrick Judge of the Upper Tribunal

Leslie Milliken

David Yeomans

 

 

Appellant:

WILLIAM GEORGE RICHARDS (t/a G E A RICHARDS

 

 

 

Attendances:

For the Appellant: The Appellant requested that the appeal be heard in his absence.

 

 

Heard at: Victory House

Date of hearing: 31 March 2010

Date of decision: 26 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 Deputy Traffic Commissioner for the Western Traffic Area to grant the Appellant’s application for a Restricted Goods Vehicle Operator’s Licence, subject to conditions and an undertaking given by the Appellant.

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

               (i)             On 16 September 1999 a Restricted Goods Vehicle Operator’s Licence was granted to William George Richards and Christopher Armstrong Richards. It authorised the use of 2 vehicles, though there was only one in possession, at an operating centre at The Nurseries, Willsbridge, Bristol BS30 6EJ.

              (ii)             In May 2004 a five yearly checklist was issued in respect of this licence. When it was returned, together with the continuation fee, the Traffic Office was informed that Christopher Armstrong Richards had died on 29 April 2004. The continuation fee was placed on account and a letter was sent to the remaining partner, William George Richards, informing him that he would be deemed to be the holder of the licence, pursuant to Regulation 31 of the Goods Vehicles (Licensing of Operators) Regulations 1995, ["the 1995 Regulations"] until 26 July 2005 and that if he wished to operate beyond that date he had to apply for a licence in his own right. He was provided with the starter pack for a new licence.

            (iii)             William George Richards did not make any application for a new licence in the period between May 2004 and 26 July 2005, nor did the Traffic Office take any further steps at that stage.

            (iv)             On 2 June 2009 a further five yearly checklist was issued in relation to the original partnership licence. The completed checklist was received at Leeds later that month, together with payment of the continuation fee. Once again the checklist indicated that Christopher Armstrong Richards had died.

             (v)             The matter was considered in some detail before being placed before the Traffic Commissioner for a decision. In the course of the investigation it became clear that the wife of William George Richards became a partner on 1 December 2008 and that, at that stage, he wished to continue with the original partnership licence. The Traffic Commissioner decided that the licence should be reinstated so that action could be taken and that the original licence should be revoked on the basis of material change in circumstances, breach of conditions and illegal operation and that the revocation should take effect at 2359 on 31 August 2009 unless the operator had requested a Public Inquiry by 2359 on 16 August 2009. The object of the exercise was to enable the new partnership to put in an urgent application for a new licence, and a request for an interim licence. William George Richards was informed of this decision by a letter dated 22 July 2009.

            (vi)             An application for a licence in the name of the William George Richards (t/a GEA Richards, using the same operating centre, was received at the Traffic Office on 19 August 2009. At a later stage it was confirmed that this was an application by William George Richards, as a sole trader, rather than an application by a partnership. It reached the environmental team on 26 August 2009, which left three working days before the termination of the previous licence in accordance with the Traffic Commissioner’s order. The application was submitted without any of the supporting documentation. The Appellant was informed of the difficulties by telephone and by a letter dated 27 August 2009, which set out the details of the information which was still required. In addition the letter asked for comments as to whether or not it would be acceptable for the conditions attached to the previous licence to be attached to the new licence.

           (vii)             In about September 2009 the Traffic Office endeavoured, without success, to recover the file for the original licence. The purpose was to obtain further information as to why conditions had been attached to the original licence. In the absence of the file it was assumed that there must have been some opposition in the past and that the absence of complaints against the previous operation meant that the conditions had been effective. However the Traffic Office took the view that the circulation of the first newspaper to carry an advertisement of the application was insufficient, in the vicinity of the operating centre, and the Appellant was therefore required to advertise in a newspaper with a wider local circulation.

         (viii)             In the course of e-mail correspondence about the grant of an interim licence the Appellant also replied to a question as to whether the conditions were acceptable, saying: “with regard to conditions placed for environmental and road safety concerns we have no problem with these, but would expect the same conditions to apply on other vehicles using the same road to access any other operating centre”.

            (ix)             The application for an interim licence was put before the Deputy Traffic Commissioner who granted the application, with the environmental conditions attached. He directed that a Traffic Examiner should visit the operating centre and report in relation to the environmental conditions. He agreed that the Appellant should be required to re-advertise and he directed that the matter should be referred back in view of the unsatisfactory/unresolved issues.

              (x)             On 1 October 2009 the proposed operating centre was inspected by a Traffic Examiner. He was satisfied with all aspects of the site, save that because of the narrow roads within the site he suggested a 10 m.p.h. speed limit. As a result of his report the recommendation made by the Traffic Office questioned whether it was still appropriate to attach the previous environmental conditions. But it went on to point out first, that the Appellant had agreed to the imposition of the conditions and second, that they appeared, judging by the past, to have been effective. Reasons were given for not imposing a 10 mph speed limit, either as a condition or through an undertaking.

            (xi)             On 11 November 2009 the matter came before the Deputy Traffic Commissioner on paper. By that date there had been no objections or representations. The Deputy Traffic Commissioner decided that provided that the Appellant gave an undertaking to attend a new operator seminar and supplied proof of having done so by 20 June 2010 the licence should be granted in full, subject to the pervious environmental conditions, but without any undertaking as to the speed limit. Formal notification of that decision was given in a letter dated 18 December 2009.

           (xii)             On 14 January 2010 the Appellant gave Notice of Appeal against this decision in the form of a letter. He set out some of the history of the matter and said that following the Traffic Examiner’s visit, during which he had said that he could see no need for environmental conditions, he was ‘stunned’ to receive the letter indicating that the licence had been granted subject to those conditions and to the undertaking to attend a new operator’s course. He went on to explain that up to that date he had not been able to find such a course and that he dreaded having to take time away from the business because of the difficulties in a highly competitive field. He said that he found the conditions especially galling in that he owned the access road and that another operator, with larger vehicles, also used it with the benefit of an unrestricted licence. In the circumstances his main point was that the imposition of the conditions was unfair and he asked that they should be removed so that all operators used the site, (or at least the access road), on the same basis.

3.          Before the hearing of the appeal the Appellant wrote to explain that he would not be able to attend because he could not be away from work in the run up to Easter. He invited us to consider some additional documents and to consider the appeal on paper. We entirely understand and accept his explanation and the invitation to decide the appeal on that basis.

4.          It is apparent from the Appellant’s latest letter that his relationship with the Traffic Office is not a happy one. Their view is that his attitude to the licensing process is ‘casual’ and ‘cavalier’, whereas he feels that he has not had the help, advice and assistance which he could have expected and that it was vindictive to impose of environmental conditions in his case, when similar conditions were not imposed on an operator using an adjoining site and the same access. In particular he said that he had consulted a member of the Traffic Office staff about the advertisement and that he had not been told, at that stage, that the Western Daily Press was unsatisfactory. He disputed the suggestion that it did not circulate in the Willsbridge area. He also pointed to a number of errors in the papers.

5.          We have to review the decision of the Deputy Traffic Commissioner on the basis of the material available to him at the time. In doing so we have to ask ourselves whether the Appellant has shown that the decision was ‘plainly wrong’.

6.          In relation to the undertaking that the Appellant should attend a new operator’s course it seems to us that there was ample material to justify the requirement that such an undertaking should be given. While we accept that the Appellant may well feel that he was provoked by the attitude of those in the Traffic Office who had conduct of this application we are satisfied that it is essential that he becomes familiar with the basic requirements of operator licensing, amongst which are the need to maintain a good working relationship with the Traffic Office and the requirement to respond fully and in a timely fashion to any requests made by VOSA and the Traffic Office. In our view the requirement to give this undertaking was a sensible and appropriate step, even though it will cause the Appellant inconvenience and expense. We are not persuaded that this undertaking should be removed.

7.          In relation to the conditions which were attached to the licence the Deputy Traffic Commissioner was fully entitled to proceed on the basis that the Appellant had consented to the grant of a licence which was subject to those conditions. While it is true that his consent was given on the basis that he would ‘expect the same conditions to apply on other vehicles using the same road to access any other operating centres’ it seems to us that it must have been clear to the Appellant that such conditions could not be imposed retrospectively in relation to an existing licence but could only apply on any future application for a licence to use the same operating centre, or at least the same access to another operating centre in the vicinity. Was the Deputy Traffic Commissioner plainly wrong to grant the licence subject to conditions. In our judgment the answer has to be ‘No’. In our view the Deputy Traffic Commissioner was entitled to proceed on the basis that the Appellant had consented, that such conditions had applied in the past and that they were effective, and continued to be effective, (a) because of the lack of complaints and (b) because there were not representations. If the Appellant now feels that the conditions are unnecessary his remedy is to apply to vary the licence by the removal of the conditions. If he seeks to have similar conditions attached to any other licence, which may be granted in the future he will have to see whether he is entitled to make representations when any future application is advertised.

8.          For these reasons the appeal must be dismissed.

 

 

 

 

 

Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals.

26 April 2010