Neutral Citation Number: [2010] UKUT 286 (AAC)

Appeal No. T/2010/31

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Joan Aitken

Traffic Commissioner for the Scottish Traffic Area

Dated 7 April 2010

Before:

Frances Burton, Judge of the Upper Tribunal

Patricia Steel, Member of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

Appellant:

JOSEPH KENNEDY T/A J.K. PARCELS

Attendances:

For the Appellant: Joseph Kennedy

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

Date of hearing: 28 June 2010

Date of decision: 26 July 2010

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED and the case is remitted to the Traffic Commissioner for her further consideration.

REASONS FOR DECISION

1.           This was an appeal against the Decision of the Traffic Commissioner for the Scottish Traffic Area dated 7 April 2010 when she revoked the Appellant’s goods vehicle operator’s licence on the grounds that the operator had not replied to letters dated 19 January 2010, 22 February 2010 and 16 March 2010 in respect of his application for variation of his licence together with an interim Direction.

2.           The factual background appears from the documents and the Decision letter of the Traffic Commissioner and is as follows.

(i)               The Appellant made an application to vary his licence by obtaining authorisation for a new operating centre, which he had duly advertised. The purpose was so that he could close down his existing operating centres (when the new operating centre was operational) and thus consolidate all his operations from one centre at Airdrie. The application became protracted as additional documentation was requested in a letter of 19 January 2010: (a) “a letter from the owner of the nominated operating centre(s) confirming you have permission to use these premises for use as such”; and (b) “the relevant full page of the newspaper containing the advertisement … as proof of publication that your application has been advertised in the prescribed format in a local newspaper circulating within the vicinity of its nominated operating centre(s) on any one date between 22 December 2009 and 2 February 2010”. A note of financial guidance was enclosed with this letter. On 22 February 2010 this was followed up with a repeated request for the same 2 documents.

(ii)              On 16 March 2010 a letter was sent proposing to revoke the operator’s licence “on the grounds that there has been, since the licence was issued, a material change in the circumstances of the licence holder that was relevant to the issue of the licence, in that you have failed to submit the necessary documents in relation to your newly nominated operating centre”. It added “Before proceeding as proposed, you are given the opportunity to make written representations to the Traffic Commissioner in respect of her proposed action. At your request, the Commissioner will consider this matter at a public inquiry”. A reply was requested within 10 days.

(iii)            On 7 April 2010, in the absence of the written submission requested the Traffic Commissioner revoked the licence. On 8 April 2010, the Appellant contacted the Traffic Commissioner’s office by fax stating “Further to our conversation on Friday. I sent a letter to you on 4^th April explaining that my intentions where (sic) to close down my operating centers and only have one new center in Aidrie. I have placed a (sic) advert in the local paper and have written permission from Tom LTD Airdrie to park 8 vehicles. I also spoke to Susan Cohan, s (sic) colleague and told her of my intentions she advised me that would be okay and that I should continue to operate with my current operating centers. I would like to clear up this misunderstanding asap as my licence is very important to my business. I hope you can assist me with this problem and will contact Susan Cohan today as you advised”.

(iv)            In a letter received on 22 April 2010 the Appellant wrote again appealing against the Traffic Commissioner’s premature revocation of his licence, on the grounds that he had apparently been advised to explain the background in writing. He explained that he had attempted to contact Susan Cohan at Leeds but as she was away he had spoken to her colleague “Mandy”, who had advised that the Traffic Commissioner was revoking the licence for the new operating centre (which had been proposed in Lanark) and not his operator’s licence: this closure appeared to have been necessitated as he had been told by Nightfreight (whose site it was) that he could no longer use their premises since he had ceased to carry their goods as a sub-contractor. He had then promptly replaced this operating centre with another at TOM Limited for all his vehicles and was in the process of applying to close all his other operating centres and to replace them by TOM Ltd’s at Airdrie when the Traffic Commissioner had revoked his operator’s licence. He added that he had been an operator since 1997 and felt that he was incorrectly advised by the Leeds office.

(v)             There are no papers in our file indicating any response to this attempt by the operator to explain to the Traffic Area Office that he was merely applying for a new operating centre although the file did include confirmation dated 13 April 2010 that TOM Airdrie Ltd had given the necessary permission to park as from 27 March 2010, and PMI sheets of TOM Airdrie Ltd (as all vehicles were hired from, services and maintained by this same company).

3.           At the hearing of the appeal the Appellant attended personally. He explained that he had not answered all his correspondence promptly in February and March as his brother had disappeared on 7 January 2010 and then been found dead on 25 February 2010: he had explained this to Susan Cohan at Leeds which was why she had said he should continue to operate with his current operating centres. He confirmed that he had been in touch with the Leeds office, before the letters of 16 March 2010 and 7 April 2010 had been sent, and again in his fax of 8 April 2010, in order to explain why his new operating centre was not currently being actively processed. It had appeared that the office had simply not understood that he was making a variation application to bring all his vehicles onto 1 site but had not yet given up all the others, and that he had not done anything to deserve revocation of his licence. He apologised for not answering letters promptly during the crucial 2 months but said there had been other distractions owing to his brother’s disappearance and death. He had resumed contact with his letter of 4 April 2010 by which time he had already been in touch by telephone.

4.           We consider that there are exceptional circumstances here and that revocation of the Appellant’s licence was wrong as his application appears to have been treated wrongly. He was applying to obtain a new authorised operating centre which had apparently not been treated correctly, ie as a variation.

5.           In all the circumstances this case needs to return to the Traffic Commissioner to pursue the variation as quickly as possible, as in particular the Appellant did not know that he could ask for a stay and has been losing business.

6.           We allow the appeal accordingly.

Frances Burton

Judge of the Upper Tribunal

26 July 2010