Neutral Citation Number: [2010] UKUT 468 (AAC).

 

Appeal No: T/2010/60

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF BEVERLEY BELL,

TRAFFIC COMMISSIONER for the NORTH WESTERN TRAFFIC AREA,

DATED 19 JULY 2010

 

Before:

Judge Mark Hinchliffe,

Deputy Chamber President (HESC); Judge of the Upper Tribunal.

 

Leslie Milliken

Member of the Upper Tribunal

 

David Yeomans

Member of the Upper Tribunal

 

Appellant:

 

SUBIC SOLUTIONS LTD

 

Attendance:

 

For the Appellant: No attendance

 

Appeal heard at: Victory House on 29 October 2010

 

Date of decision: 23 November 2010

 

DECISION OF THE UPPER TRIBUNAL:

 

The appeal is dismissed

 

Subject Matter:

 

Operating Centre. O-Licence cannot be granted unless proposed operating centre is, at that time, actually available.

 

Evidence. Upper Tribunal may not take account of circumstances that did not exist at the time when the Traffic Commissioner made his or her decision

 

Cases referred to:

 

None

 

REASONS FOR DECISION:

 

1)    This was an appeal from the decision of the Traffic Commissioner for the North Western Traffic Area made on 19 July 2010 when she refused the application of Subic Solutions Ltd for a Restricted Operator’s Licence authorising 4 vehicles, under Section 13(5)(d) of the Goods Vehicles (Licensing of Operators) Act 1995

 

2)    The factual background to this appeal appears from the documents, the transcript and the Traffic Commissioner’s decision and is as follows:

(i)    Subic Solutions Ltd was incorporated under the Companies Act 2006 as a private limited company on 3 November 2009. The directors of Subic Solutions Ltd are Kenneth Beardmore and Stephen Keith Southern.

(ii)   On 11 May 2010 Mr Beardmore signed an application for an operator’s licence, on behalf of Subic Solutions Ltd, and indicated that an operator’s licence held by Bolton Skip Hire Ltd would be surrendered if the application by Subic Solutions Ltd was granted. The application form also disclosed that:

“KSB Northwest Ltd (formerly Bolton Skip Hire Ltd) entered liquidation on 20/1/2010. Copies of the Notice of Appointment of Liquidator & a Statement of Affairs are attached. Subic Solutions Ltd has purchased the trading name, telephone number and various assets from the liquidators for £10,000.”

(iii)  The attached documentation showed that Mr Beardmore and Mr Southern had been the directors of KSB Northwest Ltd. At liquidation, the company had a deficiency of liabilities against assets of £135,254. Creditors included Bolton Magistrates’ Court (£8,333.32), HM Revenue & Customs (£54,599.79), Workman Property & Building (£7,666.58) and various individuals.

(iv) On 18 May 2010, the Traffic Area Office requested further information, including a letter from the owner of the nominated operating centre confirming that the company had permission to use the premises as an operating centre. The company was told that:

“This letter must detail the total number of vehicles to which this permission extends, and the date on which it takes effect.”

(v)    Mr Higson, of Higsons Chartered Accountants & Business Advisors replied on 20 May 2010 stating:

“We have requested written confirmation from the landlord of the premises that the premises may continue to be used as an operating centre, but given that the business has operated from these premises since February 2006, we would assume that you will accept that there would be no problems in this area”.

(vi) On 9 June 2010, the Traffic Area Office wrote to the company noting that no letter from the landlord had been received, and setting a deadline for compliance of 21 June 2010. Mr Higson replied on 11 June 2010 stating that a letter had been requested and had not been received. Again the point was made that Bolton Skip Hire Ltd had used the same premises so:

“Can you now confirm that you are satisfied that there are no problems in using these premises as an operating centre?”

(vii)          The Traffic Area Office did not give such confirmation, but extended the deadline until 5 July 2010. On 12 July 2010 Mr Higson wrote to the Traffic Area Office:

“We’ve been in constant touch over the past week with the Landlord’s solicitors – her stock response is that she is waiting for client instructions”.

(viii)          In due course, Mr Higson submitted a letter dated 8 July 2010 from Addleshaw Goddard, Solicitors, which states:

“I write on behalf of my client, Threadneedle Pensions Ltd (Threadneedle) for the purposes of your client’s application to the Office of the Traffic Commissioner. I confirm that Threadneedle is currently in negotiations with A1 Bolton Ltd for a lease of Units D & E, Lecturers Close, Bolton which Threadneedle requires completing by 21 July 2010.”

The letter makes no reference to the parking of vehicles. Indeed, it makes no reference to vehicles at all.

(ix) A check of Companies House records for A1 Bolton Ltd showed that Mr Beardmore and Mr Southern were the directors of the company. A Traffic Area Office file note shows that a Mr Mitton of the Traffic Area Office spoke to the operator and Mr Higson and advised them that the letter from the solicitors was unacceptable as it was not in the operator’s name, and only referred to ‘negotiations’. The deadline was further extended by a few days but, by 19 July 2010, no appropriate confirmation of parking permission had been received and so the application was refused.

(x)   On 16 August 2010 Mr Higson submitted a Notice of Appeal to the Upper Tribunal. An email states:

“We now attach … a letter of authority on behalf of the landlord from their solicitors to use the premises as an operating centre for up to 4 vehicles & a fax from the landlord’s solicitors confirming that Subic Solutions Ltd t/a Bolton Skip Hire is considered to be a group company of the lessee, A1 Bolton Ltd due to their common shareholders & directors”.

(xi) The letter from Addleshaw Goddard dated 16 August 2010 referred, again, to the fact that Threadneedle was “currently in negotiations with A1 Bolton Ltd” for a lease of the units, and added that the proposed lease would allow A1 Bolton Ltd to share occupation with a group company (as defined in section 42(1) of the Landlord and Tenant Act 1954) and that, under the proposed lease, there would be no objections to the premises being used by up to 4 heavy goods vehicles, whether by A1 Bolton Ltd or a group company of A1 Bolton Ltd. Supporting documentation showed that the letter from Addleshaw Goddard was only issued following a same-day transfer of funds on 16 August 2010. The emails also make clear that negotiations were continuing (the landlords, for example, required the superior landlord’s consent and an unconditional and irrevocable release of the lease to facilitate completion, and they also required a sworn Statutory Declaration ensuring the lease was contracted outside of the Landlord & Tenant Act 1954).

(xii)           By letter dated 22 October 2010 Mr Higson wrote to the tribunal stating that “nobody will be able to attend the meeting on behalf of the appellant”, although an email was attached from a company called CMA Law of Bolton, acting for A1 Bolton Ltd, stating that: “We have now completed”.

 

3)    The Upper Tribunal may not take account of circumstances that did not exist at the time when the Traffic Commissioner made her decision. (See Transport Act 1985, Schedule 4 Para.9(2)). Additionally, the Upper Tribunal does not usually admit or consider fresh evidence that was not before the Traffic Commissioner.

 

4)    The application was refused under S.13(5)(d) of the 1995 Act. This section requires that a proposed operating centre “is available” for use as such, and in relation to an application, the onus of establishing availability is on the applicant. The use of the present tense is noteworthy. The Act does not allow the grant of an operator’s licence if an operating centre is not, at that time, available – for obvious reasons.

 

5)    It is not clear from the papers that the Traffic Commissioner was advised, promptly, that KSB Northwest Ltd (previously known as Bolton Skip Hire Ltd) had gone into voluntary liquidation in January 2010. There does not appear to be any application or direction under Paragraph 31 of the Goods Vehicles (Licensing of Operators) Regulations 1995, and Schedule 4 of the Act does not appear to have been invoked. But even if these helpful provisions had been utilised, there would still have been the duty on the proposed operator to establish, by evidence, that they (and not some other entity) had actual permission from a person with legal authority to give such permission, to use the proposed operating centre, for the requested number of vehicles (and trailers, if appropriate).

 

6)    The tribunal is surprised that those acting for Subic Solutions Ltd did not appreciate the statutory framework applicable to the situation. Had those acting for the company acquainted themselves with the legal requirements, or taken proper advice, they would have learned that the Traffic Area Office was entirely justified in seeking specific evidence to establish compliance with the statutory requirements. Moreover, where one company has gone into liquidation owing a great deal of money, the Traffic Area Office was understandably anxious to receive clear evidence that the landlord really was happy to enter into a new lease with a new company owned and run by the same directors as had been involved with the company in liquidation.

 

7)    It is clear from the documentation that, at the date of the Traffic Commissioner’s decision, negotiations were continuing. In the event, the landlords sought some money ‘up front’, which was apparently sent, but this all took place a month after the Traffic Commissioner’s decision. Indeed, even if the tribunal was permitted to take post-decision events into account, the evidence remains vague. The email from Subic Solution’s solicitor (there is nothing confirming completion from the landlord’s solicitors) does not specify the premises, and it is not established that Subic Solutions Ltd actually is a group company with, or of, A1 Bolton Ltd. For this to be established, detailed evidence of the shareholdings and controlling interests of both companies would have to be made available to the Traffic Commissioner, which it was not.

 

8)    At the date of the Traffic Commissioner’s decision, Subic Solutions Ltd did not have the relevant landlord’s clear permission to use the proposed operating centre for 4 vehicles. Negotiations were continuing. It follows that, having given the clearest of indications as to the required evidence, and having extended the ‘deadline’ twice, the Traffic Commissioner had no alternative but to refuse the application. The appeal is, therefore, dismissed.

 

Judge Mark Hinchliffe, DCP

23 November 2010