Neutral Citation Number: [2010] UKUT 359 (AAC)

 

Appeal No: T/2010/47

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF MR A. SECULER,

DEPUTY TRAFFIC COMMISSIONER for the WESTERN TRAFFIC AREA,

DATED 17 MAY 2010

 

Before:

Judge Mark Hinchliffe,

Deputy Chamber President; Health, Education & Social Care Chamber

 

Patricia Steel

Member of the Upper Tribunal

 

John Robinson

Member of the Upper Tribunal

 

Appellants:

 

Nelson Rogers & Francis Rogers, t/a Rogers Fencing

 

Attendance:

 

For the Appellants:

Mr Nelson Rogers, unrepresented, accompanied by Mr Darren Edwards

 

Appeals heard at: Victory House on 23 September 2010

 

Date of decision: 1 October 2010

 

DECISION OF THE UPPER TRIBUNAL:

 

The appeal is dismissed. The revocation will come into effect at 2359 hrs, 6 weeks after the date of this decision, on 12 November 2010.

 

 

REASONS FOR THE DECISION

 

1)    This was an appeal from the decision of the Deputy Traffic Commissioner for the Western Traffic Area made on 17/5/2010 when he revoked the operator’s Restricted Goods Vehicles Operator’s Licence under S.26 & S.27of the Goods Vehicles (Licensing of Operators) Act 1995

 

2)    The factual background to this appeal appears from the documents, and is as follows:

(i)    The Appellant is the holder of a Restricted Operator’s Licence, authorising the use of 2 vehicles and 2 trailers. There is 1 vehicle in possession.

(ii)   A maintenance investigation took place on 12/11/2009. The Vehicle Examiner’s report highlighted the fact that inspection records were incomplete, a forward planning chart/system was not in proper use, there was no written driver defect reporting system, and the operator had a poor prohibition and MOT history.

(iii)  The operator’s operating centre is at the Penny Royal Sawmill, Goring Heath, Reading. However, there is no letterbox there, so the operator nominated a home address: “Merrywood”, Crays Pond, Reading, RG8 7QG, as the operator’s correspondence address.

(iv) Following the maintenance investigation, VOSA sent a letter dated 27/11/2009 to the Crays Pond address, seeking comments or representations. No reply was received.

(v)   VOSA sent a further letter, correctly addressed to the Crays Pond address, on 16/12/2009. No reply was received.

(vi) On 22/4/2010, the Office of the Traffic Commissioner sent a letter to both the Crays Pond address and the Penny Royal Sawmill address, by Recorded Delivery. The letter explained that the Traffic Commissioner was minded to revoke the operator’s licence unless satisfactory representations were made, or there was a request to hold a public inquiry. The letter sent to the operating centre was returned, marked “Not called for”. However, the letter sent to Crays Pond was delivered and signed for. No reply was received.

(vii)   On 17/5/10, the Deputy Traffic Commissioner revoked the operator’s licence, noting that the operator had had ample time to respond. Subsequently, a Traffic Examiner attempted to retrieve the operator’s discs that, finally, prompted a response from the operator.

 

3)    Mr Nelson Rogers attended the hearing of this appeal and he was accompanied by Mr Darren Edwards, to whom Mr Rogers is related by marriage, and who has taken over responsibility for looking after the authorised vehicle(s).

 

4)    The claim now made is that neither of the letters sent by ordinary post was received, despite the fact that the address shown is correct. The suggestion is that they may, both, have been delivered to another property in the vicinity with a similar address. It is admitted that the Recorded Delivery letter was received, but it was signed for by Mrs Louise Rogers, who is in her mid 70s. She has been caring for her husband, who is unwell. She did not pass it on. In these circumstances, the operator submits that insufficient notice of the proposed revocation was given.

 

5)    At the hearing, we permitted Mr Nelson to present medical evidence to the effect that Mr Nelson Roger’s parents had faced a number of medical issues recently, and Mr Rogers (Snr) has had a knee replaced.

 

6)    The tribunal rejects the suggestion that insufficient opportunity was offered to the operator to engage with VOSA and with the Traffic Commissioner’s office, or that there was anything further that the Traffic Commissioner could reasonably have done. The duty is upon an operator to ensure that they can be communicated with, in the ordinary course of business. It is odd in the extreme that 2 letters, correctly addressed and posted via Royal Mail, should fail to reach their destination. We think this is unlikely and improbable, especially as we were told that the operator runs a small business employing a number of people and which necessarily engages in commercial transactions. Additionally, the final letter from the Traffic Commissioner’s office, sent by Recorded Delivery, was accepted and signed for. Whatever then happened behind closed doors at “Merrywood” is not a matter that can possibly affect the outcome of this case.

 

7)    The Deputy Traffic Commissioner had before him ample evidence of the unsatisfactory nature of the operator’s maintenance arrangements. Given the lack of response, regulatory action was justified and necessary.

 

8)    Assurances have now been given, but no evidence has been seen and those assurances have not been tested.

 

9)    We were told that a fresh application has already been made for a new licence. We expect that the Traffic Commissioner will wish to consider this at public inquiry, when the maintenance concerns can be addressed, and evidence produced to support the assurances made. It may or may not be possible to expedite matters, but if our order comes into effect before the new application has been considered, the operator will have to consider seeking an interim licence from the Traffic Commissioner, and she will, no doubt, need more than assurances before such an application will succeed.

 

10) This appeal falls to be dismissed. We direct that the order of revocation will come into effect at 2359 hrs, 6 weeks from the date of this decision, on 12 November 2010.

 

Judge Mark Hinchliffe, DCP

1/10/2010