Neutral Citation Number: [2010] UKUT 65 (AAC)

 

Appeal No. 2009/515

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Miles Dorrington Deputy Traffic Commissioner for the

South Eastern and Metropolitan Traffic Area Dated 16 October 2009

 

 

 

Before:

Hugh Carlisle QC Judge of the Upper Tribunal

Leslie Milliken Member of the Upper Tribunal

Stuart James Member of the Upper Tribunal

 

 

Appellant:

LES SEARLE PLANT HIRE & SALES LIMITED

 

 

 

Attendances:

For the Appellant: James Duckworth, transport consultant

 

 

Heard at: Victory House, 30-34 Kingsway, London WC2B 6EX

Date of hearing: 4 February 2010

Date of decision: 23 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 Deputy Traffic Commissioner for the South Eastern and Metropolitan Traffic Area on 16 October 2009 when he increased the number of vehicles specified on the Appellant Company’s licence from four vehicles and four trailers to six and six respectively and varied the third condition on the Appellant’s licence to read as follows:-

“That authorised vehicles shall operate to, at and from the operating centre between 0700 hours and 1900 hours Monday to Friday inclusive and 0700 to 1400 hours on a Saturday with an additional 3 egress vehicle movements and an additional 3 ingress vehicle movements permitted each day, Monday to Friday inclusive, outside of these times. Vehicles are limited to 3 egress and 3 ingress movements between 0900 and 1400 hours on Sundays and Bank and Public Holidays. This overall condition is subject to exception in the case of undertaking emergency work when full details of such work, including the time and date of when the work was first requested, will be recorded in writing and made available to the Vehicle and Operator Services Agency (“VOSA”) and/or the Traffic Commissioner upon request. This condition also does not apply where authorised vehicles are being used for recreational purposes to transport steam engines.”

 

2. The factual background to the appeal appears from the documents, the transcript of the public inquiry and the written decision of the Deputy Traffic Commissioner and is as follows:

(i) The Company’s operating centre is on land at Parsonage Farm, Horsham, which has been owned by the Searle family since 1913. Mr Leslie James Searle started a plant hire and transport business and was the holder of an operator’s licence. He ran the business with his son and subsequently with his grandson, Mr Les Searle, who is a director of the present operating company.

(ii) The original access to the land was by a private drive leading from Parsonage Road to the farm buildings. As a result of representations by residents conditions were attached to the licence: these restricted hours of movements of vehicles and prohibited access by a less used route into Agate Lane. Part of the land was sold for development and this became the Parsonage Business Park in 1986, with Parsonage Way being constructed. It was agreed that this would constitute the sole access to the Searle land and thereafter no other route was used.

(iii) Mr Searle senior died in 1993 and the land was divided between his nephew, Mr James Searle, and Mr Les Searle, with a right of way for vehicles to and from Mr James Searle’s land being granted from Parsonage Way over Mr Les Searle’s land.

(iv) In December 2004 a public inquiry was held to consider the Appellant Company’s application to increase its number of specified vehicles by adding two vehicles to its then number of two vehicles and four trailers. The application was granted and the terms of the third condition were varied.

(v) In October 2008 the Company again applied to increase the number of specified vehicles. Subsequently representations were received from a neighbour, Mr Tilsley, who objected to the increase in vehicle numbers and to the likely increase in noise and fumes. Horsham District Council, and West Sussex County Council as Highway Authority, also made objections but subsequently the objection by West Sussex was withdrawn. A traffic examiner visited the property and inspected the Company’s tachograph charts. It appeared that there may have been vehicle movements outside the permitted hours and these also formed part of the concerns raised before the Deputy Traffic Commissioner.

(vi) The Company was called-up to a public inquiry which took place on 10 September 2009. Mr Tilsley was held to be a valid representor but it became apparent that neither he nor Mr Wright who appeared for the Horsham District Council, had any direct evidence of noise, dust or vibrations arising from the Company’s operations. Mr Tilsley lives in Treadcroft Drive and cannot see into the Company’s premises: he accepted that vehicles could go in and out and remain on the site “with you not knowing about their existence at all”. Mr Wright was not in possession of any evidence of complaints and addressed the Deputy Traffic Commissioner only on a general basis. A traffic examiner, Mr Brown, also gave evidence. He produced his report but the allegations that there had been unpermitted movements were not accepted by the Deputy Traffic Commissioner and formed no part of the appeal.

(vii) Detailed plans and photographs of the Appellant’s premises were provided. In addition the Deputy Traffic Commissioner had visited the premises prior to the public inquiry. Mr Duckworth had appeared for the Company in the 2004 public inquiry and was again instructed. The Company’s evidence was given by Mr Les Searle, who described the history of the site. His case was that the conditions had been imposed in the early 1980s when the access was by the private drive direct into Parsonage Road whereas the access had later changed and was via Parsonage Way. This argument had not found favour in the 2004 public inquiry when the Traffic Commissioner decided to continue the condition but it was now contended that the condition was both unnecessary and unreasonable. Mr Searle explained that much of his work involved heavy plant the movement of which attracted abnormal loads restrictions. In particular he referred to heavy plant which had to be moved at short notice in cases of rail emergencies. In order to overcome the condition he had to employ outside contractors who were not bound by it but this was an expense which was unnecessary and unfair and which he wished to avoid. He referred to the other users of the Searle land who were not subject to any conditions, although they were in a minority.

(viii) The Company’s movements were considered in detail and Mr Duckworth then made final submissions. On 25 September 2009 the Deputy Traffic Commissioner completed a draft decision. This maintained the condition but contained variations in the Company’s favour in respect of out of hours movements. Submissions were invited. Mr Duckworth responded on 29 September and on 16 October the Deputy Traffic Commissioner signed his final decision. This granted the increase in specified numbers and further varied the condition in the Appellant’s favour. The final version is as set out in paragraph 1 above. The Deputy Traffic Commissioner accepted that there was no evidence of noise, dust or vibrations “specifically attributable to the vehicles being operated by [the Company] that was capable of prejudicially affecting the use or enjoyment of land within the vicinity of [the Company’s] operating centre”. However he went on to conclude:-

“Despite the findings I have made above, totally uncontrolled vehicular movements of the type used, and to be used by this operator, into and out of the operating centre late at night or very early in the morning would create a real risk of adverse effects on environmental conditions within the vicinity of the operating centre, particularly the risk of noise intrusion.”

 

3. Mr Duckworth provided us with a skeleton argument and with copies of various decisions by the Tribunal on which he relied. We are grateful to him and the conduct of the hearing was greatly assisted. His essential submission was that the condition was no longer necessary and that it ought now to be struck out. He said that circumstances at the premises had changed and that it was unfair that there were other operators who were not subject to restrictions. The Deputy Traffic Commissioner had found that there was no evidence of noise, dust or vibrations which was specifically attributable to the Company’s operations and there was nothing to support his subsequent finding that there was “a real risk of adverse effects”. Insofar as the Deputy Traffic Commissioner had carried out an inspection no comments about this were made in the decision. Mr Duckworth submitted that the Deputy Traffic Commissioner’s decision had to be based on evidence and not on generalities.

 

4. We have considered all the papers and Mr Duckworth’s submissions. The Company is now the major operator at the centre and the reality is that if its condition is struck out the other restricted users will seek similar relief. We think that the Deputy Traffic Commissioner carefully reviewed all aspects and was entitled to conclude that “totally uncontrolled vehicular movements ….. would create a real risk of adverse effects”. We do not accept that there was no evidence in support of this view. On the contrary, the premises are clearly described in plans and photographs and, as he stated in his decision, these showed “the operating centre, the perimeter bund, fence and significant hedgerow surrounding the site …..”. In addition he had inspected the premises and had been well able to form a view from first hand experience. This is essentially a residential area and we are satisfied not only that the Deputy Traffic Commissioner’s conclusions were not plainly wrong but also that we would have come to a similar result.

 

5. Mr Duckworth’s second submission went to the variation of the wording of the condition. Despite the increase in the number of vehicles which had been granted and the enlargement of the number of permitted out of hours movements he maintained that these were too restrictive for the Company’s needs. He made detailed submissions about the difficulties in getting in and out of the premises within the permitted times. Again, we have to say that these aspects were all put to the Deputy Traffic Commissioner and he dealt properly with them. Indeed, as we have observed, he varied his provisional wording in the Company’s favour. Once the Deputy Traffic Commissioner had decided that a movements condition should remain he had then to make a judgment about its terms. We are satisfied that he properly addressed this issue and that his conclusions cannot be faulted.

 

6. Mr Duckworth’s last submission was, he said, “technical”. He submitted that the wording of the condition was defective in that the words ”operate to, at and from” should be reduced to “at”. The extra words are superfluous and are not within reg.14(c) of the Goods Vehicles (Licensing of Operators) Regulations 1995. He posed the question:-

“If a driver parked his lorry overnight in a Horsham car park and began driving to the operating centre at 6.45am would that be a contravention of the condition?”

We do not agree. We note that the previous versions of the condition contained the extra words and it may be that these were added for emphasis: it could be said that “enter, move within and leave” would have been even more specific. In any event we think that the meaning is clear and that the hours stated relate to the use of the operating centre itself rather than to operation outside.

 

7. The appeal is dismissed.

 

 

 

 

 

Hugh Carlisle QC

Judge of the Upper Tribunal

23 February 2010