Neutral Citation Number: [2010] UKUT 226 (AAC)

Appeal No. T/2010/28

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of

Richard Turfitt TRAFFIC COMMISSIONER for the Eastern Traffic Area

Dated 24 February 2010

Before:

His Hon. Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken

David Yeomans

Appellant:

CHRISTOPHER JAMES BISHOP GREEN

t/a JAMIE GREEN TRUCKING

Attendances:

For the Appellant: The Appellant did not attend but invited the Tribunal to determine the appeal in his absence.

Heard at: Victory House

Date of hearing: 27 May 2010

Date of decision: 11 June 2010

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED and that this Order shall take effect at 2359 on 9 July 2010 UNLESS the Appellant has lodged a completed and compliant application for a new licence by that date, in which case this Order shall come into effect on the determination of the application or the granting of an Interim Licence, whichever first occurs.

REASONS FOR DECISION

1.           This is an appeal from the decision of the Traffic Commissioner for the Eastern Traffic Area to refuse to disregard the fact that the Appellant’s 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 this appeal appears from the documents and the Traffic Commissioner’s decision and is as follows:-

(i)                   The Appellant is the holder of a Standard International Goods Vehicle operator’s licence authorising two vehicles and two trailers, with one vehicle in possession.

(ii)                 On 30 December 2009 the Appellant was sent a letter by the Central Licensing Unit, (“CLU”), informing him that the renewal fee of £4.00 was due no later than 31 January 2010 and warning him that failure to pay by the due date would result in the licence terminating.

(iii)                The Appellant failed to pay by the due date and on 8 February 2010 the Office of the Traffic Commissioner at Leeds wrote to inform him that the licence had terminated automatically as a result of s. 45(4) of the 1995 Act. The Appellant was told that he no longer had authority to operate and that if he wished to resume operation he would first have to apply for a new licence.

(iv)                On 18 February 2010 the Appellant contacted the Office of the Traffic Commissioner by e-mail explaining that he had been working abroad since 27 December 2009, that he was therefore unable to receive the letter of 30 December 2009 and that on his return home he found that letter and the letter of 8 February 2010. He ended: “due to my extenuating circumstances would you please accept a late payment in order for me to retain my licence”.

(v)                 That explanation was considered by two members of the Traffic Commissioner’s office. Both concluded that it did not amount to ‘exceptional circumstances’ which would entitle the Traffic Commissioner to exercise the discretion granted by s. 45(5) of the 1995 Act to disregard the termination of the licence. They came to that conclusion because the Appellant should have had a system in place to ensure that the licence was renewed in his absence. On that basis the matter was referred to the Traffic Commissioner who agreed that there were no exceptional circumstances in this case and that he therefore had no discretion to disregard the automatic termination of the licence.

(vi)                On 24 February 2010 the Appellant was informed that the termination of the licence stood and that he had no legal authority to operate his vehicle unless and until he had applied for a new licence or he had successfully appealed to the Tribunal.

(vii)              The Appellant appealed by a Notice of Appeal dated 18 March 2010. In his grounds of appeal he repeated the explanation to which we have referred. The Appellant invited the Tribunal to determine the matter in his absence.

3.           The Tribunal has pointed out in a number of recent decisions, (see in particular 2008/569 David Collingwood t/a Construction and Demolition and T/2010/16 & 21 Alan Cooper t/a Alan Cooper Haulage and Jeanette Wootten t/a Woodhouse Furniture), that the 1995 Act makes no provision for sending reminders that a renewal fee is due and that it expressly provides for the licence to terminate “if any fee or instalment of a fee is not duly paid by the prescribed time”. The Tribunal has held that it follows that the primary obligation in relation to the renewal of the licence rests on the operator. However Parliament has gone on to provide a Traffic Commissioner with a measure of discretion to disregard the automatic termination of the licence following non-payment, “if he considers there to be exceptional circumstances that justify his doing so”.

4.           In the present case the Traffic Commissioner concluded that there were no exceptional circumstances with the result that there was no basis on which he could exercise any discretion. We are quite satisfied that that conclusion was correct. Given that the primary obligation to ensure renewal rested on the Appellant he either knew or ought to have known that he would be abroad when the renewal fee fell due. We say that because the expiry date appears on the disc, which must be displayed on the vehicle, and it should have been seen on the daily ‘walk-round’ check. In that situation it was up to the Appellant to make arrangements for the renewal fee to be paid while he was abroad, with the result that the fact that he did not have an opportunity to read the letter of 30 December 2009 before the date for payment cannot amount to ‘exceptional circumstances’. In our view there is nothing else in this case, which either singly or in combination with other matters could amount to exceptional circumstances.

5.           It follows that the appeal must be dismissed.

6.           The Appellant applied for and was granted a stay by the Traffic Commissioner. He must now apply for a new licence and we assume that when he does so he will ask for an interim licence. The Tribunal’s order will come into effect at 2359 on 9 July 2010 unless by that date the Appellant has submitted a complete and compliant application for a new licence, (by this we mean a fully completed application accompanied by all the relevant documents). If such an application is submitted the coming into effect of the Tribunal’s order will be further postponed until the determination of the application or the grant of an interim licence, whichever first occurs. The Tribunal has the power to re-consider the date on which its order comes into effect. Since the Appellant was not present at the hearing it will be prepared to do so if the Appellant makes a reasoned request for further time.

Michael Brodrick, Judge of the Upper Tribunal, Principal Judge for Traffic Commissioner Appeals. 11 June 2010