Neutral Citation Number: [2010] UKUT 357 (AAC)

 

Appeal No. 2010/51

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL FROM THE DECISION OF

PHILLIP BROWN, TRAFFIC COMMISSIONER for the

SOUTH EASTERN & METROPOLITAN TRAFFIC AREA Dated 6 July 2010

 

 

 

Before:

Her Honour Judge J Beech

Judge of the Upper Tribunal

 

Patricia Steel

Member of the Upper Tribunal

 

George Inch

Member of the Upper Tribunal

 

 

Appellant:

JOHN PERRIN trading as J P SCAFFOLDING

 

 

 

Attendances:

For the Appellant: In person

 

 

Heard at: Victory House

Date of hearing: 14 September 2010

Date of decision: 28 September 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

 

Subject Matter: Revocation. Failing to notify Traffic Commissioner of change in correspondence address.

 

Cases referred to: None

 

 

REASONS FOR DECISION

 

 

1.           This was an appeal from the decision of the Traffic Commissioner for the South Eastern and Metropolitan Traffic Area made 6 July 2010 when he revoked the Appellant’s restricted operator’s licence under s.26(1)(f)&(h) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 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 Appellant was the holder of a restricted operator’s licence authorising one vehicle, with one vehicle in possession. His correspondence address was recorded as 1 Melrose Road, Coulsdon and his operating centre was at 4 Bunting Close, Mitcham.

 

(ii)             On 29 March 2010, VE Hierons telephoned the Appellant in order to arrange a new operator maintenance investigation. The Appellant did not answer his telephone. Accordingly, VE Hierons left a message requesting that the Appellant contact VE Hierons to arrange an appointment. The Appellant did not respond.

 

(iii)            On 31 March 2010, VE Hierons telephoned the Appellant again, leaving a second message for the Appellant in similar terms to the first. The Appellant did not respond.

 

(iv)           On 13 April 2010, two “no contact” letters were sent to the Appellant at his correspondence address and his operating centre. No replies were received and the latter letter was returned to VOSA.

 

(v)             Thereafter, the Appellant was telephoned by TE Nicolls to arrange an appointment to undertake a New Operator Advisory and Educational Visit. That took place on 21 May 2010 at 9 Southdown Road, Carshalton, the Appellant’s home address. The Appellant’s tachographs and systems were checked and the report was marked as satisfactory.

 

(vi)           On 9 June 2010, the Traffic Area office wrote to the Appellant informing him that attempts had been made to make an appointment with him so that a maintenance investigation could take place. As a result of his failure to respond to the telephone messages and the letter of 13 April 2010, the Traffic Commissioner was concerned that there may have been a change in the circumstances of the Appellant and that he may not have sufficient resources to maintain his vehicles. He was therefore required to produce maintenance records and evidence of financial standing by 30 June 2010. The letter was sent by recorded delivery and second class post to both the Appellant’s correspondence address and to his operating centre.

 

(vii)          On 11 June 2010, the following copies of the letter were returned to the Traffic Area office: the recorded delivery letter to the Appellant’s correspondence address which was marked “addressee gone away”; the second class letter and the recorded delivery letter sent to the Appellant’s operating centre which were marked “address inaccessible”. On 14 June 2010, the second class letter sent to the Appellant’s correspondence address was returned marked “addressee gone away”.

 

(viii)         By a letter dated 6 July 2010, addressed to both the Appellant’s correspondence address and his operating centre, he was informed of the Traffic Commissioner’s decision to revoke his operator’s licence under ss.26(1)(f) and (h). The letter addressed to the Appellant’s operating centre was returned to the Traffic Area office marked “addressee gone away”.

 

(ix)           On 11 July 2010, the Appellant wrote to the Traffic Area office stating that he was in the middle of divorce proceedings and had changed his correspondence address to 9 Southdown Road, Carshalton. As a result, he had not received the letter dated 9 June 2010 sent to 1 Melrose Road and was not aware of the Traffic Commissioner’s request for vehicle records and financial information. He further relied upon the fact that he had been visited by TE Nicolls at 9 Southdown Road prior to 9 June 2010.

 

3.           In his notice of appeal, the Appellant referred to the above letter and informed the Tribunal that having changed his correspondence address, he had arranged for his post to be redirected for one year. This had come to an end on 1 June 2010. Thereafter, his wife had not been consistent in forwarding his post. As soon as he received the letter of 6 July 2010, he acted upon it immediately.

4.           At the hearing of his appeal, the Appellant appeared in person. He informed the Tribunal that during the currency of his operator’s licence, 1 Melrose Road had not been his correct correspondence address, as he had moved to 9 Southdown Road prior to the commencement of his business. He accepted that he should have informed the Traffic Commissioner of the change in his correspondence address. Further, his operating centre was simply a scaffolding yard with no office or letter box and it was for that reason, that he did not receive the letters that had been sent to that address.

 

5.           He recalled receiving telephone calls from two different VOSA officials during the early part of this year, but that he had only returned the calls of TE Nicolls who then visited him at 9 Southdown Road. He thought that in replying to TE Nicolls and then meeting him at 9 Southdown Road was sufficient to deal with the calls that he had received from VE Hierons and was sufficient to put the Traffic Commissioner on notice that he had changed correspondence address. He submitted that TE Nicolls had been satisfied with his tachographs and systems and the Appellant was confident that a maintenance investigation would reveal that the Appellant’s vehicle was well maintained and that a perusal of his financial information would reveal that he had sufficient financial standing to continue to operate his vehicle. He asked the Tribunal to allow his appeal so as to enable him to satisfy the Traffic Commissioner of the outstanding matters and to allow him to continue to operate.

 

6.           Whilst we have no reason to doubt the Appellant’s explanation for his failure to respond to any of the correspondence sent to him by TE Hierons and the Traffic Area office, we are not satisfied that the Traffic Commissioner’s decision to revoke the Appellant’s licence in the circumstances was plainly wrong. It was the Appellant’s responsibility to ensure that the Traffic Commissioner’s records contained his correct correspondence address. This he did not do. Neither did he ensure that his post continued to be consistently and promptly forwarded to him during the currency of his licence in order to ensure that he received and dealt with all of the correspondence sent to him in relation to his operator’s licence. Whilst it is clear that TE Nicolls did attend 9 Southdown Road (the Appellant having produced a copy of the officer’s report which set out that address), such a visit could not and should not have caused the Appellant to assume that the Traffic Commissioner was thereafter aware of a change of correspondence address. The obligation to keep the Traffic Commissioner informed of the up to date position remained upon the Appellant at all times. In the circumstances, we cannot allow this appeal.

 

7.           However, we did indicate to the Appellant that a fresh application for a licence, promptly made, with a full explanation for his failure to keep the Traffic Commissioner informed of his correspondence address together with evidence of adequate finances and a copy of the report produced by TE Nicolls may be considered favourably by the Traffic Commissioner. Whilst the decision as to whether to grant the Appellant a new licence remains firmly with the Traffic Commissioner, we wish to record that we were impressed with the Appellant’s presentation and honesty during the course of the hearing.

 

8.           In the result, the appeal is dismissed.

 

 

 

 

Her Honour Judge Beech

28 September 2010