Neutral Citation Number: [2010] UKUT 223 (AAC)

Appeal No. T/2010/14

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 13 January 2010

Before: Hugh Carlisle QC Judge of the Upper Tribunal

George Inch Member of the Upper Tribunal

John Robinson Member of the Upper Tribunal

Appellant:

SDV BERNARD LIMITED

Attendances:

For the Appellant: Tony Cox, transport manager

Heard at: Victory House, 30-34 Kingsway, London, WC2B 6EX

Date of hearing: 10 May 2010

Date of decision: 25 May 2010

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED and that the termination of the licence take effect at 2359 hours on 21 June 2010.

REASONS FOR DECISION

1.           This was an appeal from the decision of the Traffic Commissioner for the Welsh Traffic Area on 13 January 2010 when he refused to find exceptional circumstances under s.45(5) of the Goods Vehicles (Licensing of Operators) Act 1995 so as to disregard the termination of the licence by non-payment of the renewal fee.

2. The factual background appears from the documents and is as follows:

(i) The Appellant Company was the holder of a standard national operator’s licence for three vehicles and three trailers. The licence was granted on 11 April 2004 and the Company elected to renew its licence on a five-year basis, with 31 October 2009 being the relevant date. On 30 September 2009 a renewal notice was sent: this stated that failure to pay the fee would result in termination of the licence. No fee was received. On 13 November 2009 the Traffic Area Office notified the Company that by reason of the non-payment the licence had automatically terminated.

(ii) It seems that subsequently there were telephone conversations between the Traffic Area Office and the Company and these are referred to in a letter sent to the Traffic Area Office by Mr Cox, the transport manager, on 2 December 2009. Various checks had been made to see if the renewal notice had been received but it had not been found. Mr Cox stated that he assumed that it had not been received and that this was the explanation for the non-payment. He invited the Traffic Commissioner to reconsider the termination.

(iii) The matter was then put before the Traffic Commissioner and on 13 January 2010 he refused to disregard the termination. As he said “No attempt has been made to give any exceptional circumstances, accordingly the only rational decision that I can make is to refuse the application”.

3. Mr Cox appeared before us on the Company’s behalf. He had carried out a search of the Company’s premises and was satisfied that the renewal notice had not been received. He thought that it must have been lost during postal disputes which were occurring at that time. He invited us to find that the failure to receive the notice constituted “exceptional circumstances”. He had telephoned immediately he had received the letter of 13 November 2009.

4. As we have stated on previous occasions (see 2009/569 David Collingwood) there is no provision for renewal notices or reminders in the Act. The statutory position is clear: if the fee is not paid by the prescribed time, the licence terminates. It is for the licence holder to comply with this requirement. It follows that non-receipt of such a notice is not in itself an exceptional circumstance and accordingly the appeal is dismissed. The termination will take effect at 2359 hours on 21 June 2010.

Hugh Carlisle QC

Judge of the Upper Tribunal

May 2009