Neutral Citation Number: [2010] UKUT 63 (AAC)

Appeal No. T/2009/521

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 16 November 2009

Before:

Frances Burton, Judge of the Upper Tribunal

Patricia Steel, Member of the Upper Tribunal

George Inch, Member of the Upper Tribunal

Appellant:

WHITAKER and NORMILE RACEHORSES

Attendances:

For the Appellant: Alan Normile

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

Date of hearing: 22 January 2010

Date of decision: 19 February 2010

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

REASONS FOR DECISION

1.           This was an appeal from the Decision of the Traffic Commissioner for the Scottish Traffic Area dated 16 November 2009 when she revoked the Appellant’s operator’s licence, for failure to reply to the Traffic Area Office’s letter of 28 September 2010, which had proposed revocation following the Operator’s failure to answer 3 previous letters dated 3 July 2008, 16 October 2008 and 29 June 2009.

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

(i)               The Appellants held an operator’s licence authorising a single 7.5 tonne vehicle, a horsebox. In July 2008 the Office of the Traffic Commissioner wrote to the Appellants stating that it had come to their notice that the Appellants had no maintenance contract on their file. This was because the nominated Preventative Maintenance Contractor had notified the Traffic Area Office on 2 June 2008 that their company was no longer the Appellants’ nominated contractor. The Appellants were given until 17 July 2008 to send in a new contract signed by themselves and a replacement contractor: a model agreement was enclosed.

(ii)              A further letter was sent by First Class post and recorded delivery on 16 October 2008, and the Appellants were given until 30 October 2008 to comply. The letter stated “otherwise this matter will be referred to the Traffic Commissioner”. A further letter in the same terms was sent on 29 June 2009, giving the Appellants until 13 July 2009 to respond. A final letter of 28 September 2009 indicated the Traffic Commissioner’s proposal to revoke the licence on the basis of “material change” pursuant to s.26(1)(h) of the Goods Vehicle (Licensing of Operators) Act 1995 (because of the resignation of maintenance contractor constituting a “change”) and also under s.26(1)(f) of the Act in that this meant that the Appellants were not adhering to their undertakings as they had failed to notify their new maintenance contractor (if any).

(iii)            This final letter gave the Appellants the opportunity to make written representations and indicated that at their request the Traffic Commissioner would consider the matter at public inquiry. They were given 10 days to respond (which would therefore presumably expire on 8 October 2009). As there was no response the licence was then revoked on 16 November 2009, by letter enclosing a copy of that of 28 September 2009.

(iv)            On 17 November 2009, upon receipt of the letter of 16 November 2009, Mrs Normile wrote to the Traffic Commissioner stating that upon receipt of each letter she and her husband had variously telephoned the Traffic Area Office explaining their situation. For several months they had not had a horsebox on the road and had dismissed their PMI contractor as there had been problems with that nominated contractor. It had taken them a while to find a replacement and also to replace their horsebox. She said they were told on the telephone “to keep the licence running rather than to cancel it and start again when we did then have a horsebox” and “after quite some while we were able to purchase a new box and notified your office of this”. She said “we have been in contact with your offices and each time were told that there was no problem adding “Perhaps I should have written to you on each occasion but having made telephone contact was led to believe this was satisfactory”. She also appeared confused about the dates of the correspondence as she then referred to “the last letter dated the 10^th November 2009” which she said “also gave 10 days to reply before the licence was revoked” whereas in fact that period of 10 days related to the letter of 28 September 2009 so that the 10 days referred to therein had long since passed.

3.           At the hearing of the appeal Mr Alan Normile attended. The Appellants’ Transport Manager Mr Thom Bell had also attended but had been obliged to leave before the appeal was heard. Mr Normile produced the letter that Mr Bell had written in support of the appeal in which he set out the background to the inactive period in which there had been no vehicle nor, therefore, PMI contractor. He stated that the horsebox was necessary for the racing business and that he had helped to set up and run the transport side of this business. He said that the business had “hit on hard times” and the horsebox had been impounded by one of their creditors as they had been unable to pay several creditors, including himself, for a period, so that he had stopped working for them. He stated that throughout that difficult period the systems he had put in place had remained operational, maintenance had been done and there were records and invoices (including to the nominated PMI contractor A.J. Spence, although they had notified the Traffic Commissioner that they were no longer acting as such) and details of payments for such invoices showing that the vehicle had been maintained throughout the period. He ended that it seemed harsh to revoke the Appellants’ licence in all the circumstances because Mrs Normile had not written to the Traffic Area Office. He added that she had had “greater maternity problems to deal with” and that he was happy to guide her on the transport side so that she could concentrate on the racehorse training which was the core business.

4.           Mr Normile confirmed all these circumstances, stating that he ad his wife had lost a child 18 months previously which had adversely affected them and their business, but that they were now able to afford to pay Mr Bell and wanted to resume work with him. He added that they had only been “out of time” in writing to the Traffic Commissioner but that all necessary compliance had otherwise been in place.

5.           We were sympathetic to Mr Normile and his wife but the fact is that letters from the Traffic Commissioner must be answered. While a licence is live all the essential components of the system must be in place and that includes a valid PMI contract. There is still no evidence on our file of such a contract being submitted and this essential document is absolutely required as part of the system to support an operator licence. However, the licence has only been revoked for failure to meet the Traffic Area Office’s very clearly stated deadlines, several “last chances” were offered, including one of written representations before anticipated revocation and also an offer of considering the Appellants’ circumstances at public inquiry, none of which was taken up. The Appellants have not been disqualified and there appear to be no road safety issues. We are therefore unable to see where the Traffic Commissioner is in error, and the way forward would appear to be to apply for a new licence and to request an interim licence (for which a valid maintenance contract will have to be produced).

6.           Accordingly we must dismiss the appeal.

Frances Burton

Judge of the Upper Tribunal

19 February 2010